Whither scheme for eviction of encroachments

By Dailyexcelsior - 08/08/2018

Encroachments of all sorts were slated to be removed after formulation of appropriate schemes by Jammu and Kashmir Government in accordance with and to ensure compliance of the directives of the Supreme Court. Although nearly six years back a scheme for eviction of all sorts of encroachments was formulated, yet it has remained unimplemented in the State which has given place to avoidable worrisome situation in length and breadth of the State.

In its landmark judgment, Supreme Court of India on Jan 28, 2011, while disposing of a civil appeal titled Jagpal Singh Versus State of Punjab and others, had directed all the State Governments in the country to prepare schemes for eviction of illegal and unauthorized occupants of Gram Sabha, Panchayat, Shamlat land etc and the same to  be restored to Gram Sabhas , Panchayats  etc for use of the villagers in  the villages. The Apex Court had directed the Chief Secretaries of all State Governments/Union Territories in India with directions to do the needful and taking the help of other senior officers of the Government in this regard. The said scheme was to provide for the speedy eviction of such illegal occupants after giving them a briefing and a show cause notice.

In consonance with the directives of the Apex Court and keeping in view the powers conferred by J&K Land Revenue Act as also J&K Common Lands  (Regulation) Act besides other relevant provisions of the law in force in the State, the State Revenue Department formulated a scheme for evictions of encroachments . The scheme was titled as “J&K Eviction of Unauthorized occupants (from common and other land) Scheme. This scheme was duly approved by the Cabinet in Oct 2011 and notified too, soon thereafter for strict implementation by all the concerned authorities. The scheme provides for direct accountability of all the Deputy Commissioners in respect of the implementation of its provisions. Concerned agencies were to be roped in to identify the encroachments. Likewise all the BDOs were to be held accountable for any casual approach adopted for identifying such encroached lands belonging to Panchayats and had to report to the Deputy Commissioner concerned for eviction processes. Implementing the scheme had, subsequently to result in handing over the encroached land by Deputy Commissioners to the concerned authority after making entries in revenue records. Moreover, the Deputy Commissioners were to fix targets to each Tehsildar regarding eviction of illegal occupants and take steps to prevent such encroaching incidents.

The Apex Court had, vide its order under reference, made it amply clear that any huge expenditures incurred in making constructions on such encroached lands or any political connections whatsoever, were not to be treated as cases of justification of condoning this illegal act or for regularizing the illegal possession . The Court had made one exception to it in cases of those where lease was granted under some Government notification to landless labourers or to members of scheduled castes and scheduled tribes or if there was a school, dispensary or other public utility on the land.

The scheme was so much exhaustive and well defined that there should have been no difficulties practically encountered or excuses or any type of alibi in implementation. A three months time limit was reasonably sufficient, given under the aforesaid J and K Land Revenue Act and Common Lands (Regulation) Act and hence encroachments on common and other categories of land alike, needed to be removed and any delay in eviction process was fraught with springing of more complications and giving place to cumbersome problems in addition to amounting to flagrant violation of the SC directives and the Cabinet decision.

Whatever the reasons , the scheme for eviction of all sorts of encroachments has not seen the light of the day and implemented, not even in the least, which has led to a worrisome  situation throughout the State , in appearance and in its effects,  which has been viewed seriously by  Governor N N Vohra. Not complying with the court orders by the concerned authorities is tantamount to adopting contemptuous attitude towards the apex court as also towards the orders passed by the State cabinet which has remained confined to mere formality as no level of implementation has been reached by the enforcing authorities resulting in the status quo ante position. Can successive Revenue Ministers, bureaucrats be held accountable for such a glaring lapse on their part to set an example of how orders of the SC and the decisions of the cabinet were to be scrupulously implemented? We shall be duly monitoring the developments.

http://www.dailyexcelsior.com/whither-scheme-for-eviction-of-encroachments/

SMT. PUSHPA V UNION OF INDIA

HIGH COURT OF CHHATTISGARH

WPC No. 110 of 2016 (18/01/2016)

1. Petitioners have assailed the legality and validity of the notice Annexure P-1, whereby the respondent No.2 The Senior Section Engineer (Work), WRS, Raipur, has issued 15 days notice for removal of encroachment and vacation of the premises belonging to the railways, on which the petitioners have encroached.

2. Shri Khetrapal, learned counsel for the petitioners, would draw attention of the Court to the document Annexure P-2, whereby the Municipal Council, Dhamtari has received property tax from the petitioners as also to the proceedings Annexure P-3 drawn by the Tehsildar, Dhamtari, wherein the railways failed to submit any document proving its ownership on the land. On the strength of these documents, Shri Khetrapal would submit that the land does not belong to railways, therefore, the notice Annexure P-1 is without any authority of law.

3. Per contra, Shri Abhishek Sinha, learned standing counsel for the railways, appearing on advance notice, would show to this Court copy of the Khasra Panchshala of the subject land, wherein the railways has been mentioned as the owner of the land. He would further submit that in the receipt Annexure P-2, issued by Municipal Council, Dhamtari, also the owners of the property has been mentioned as the railways. He would also submit that the proceedings Annexure P-3 was not initiated on any application moved by the petitioners and/or the railways, but the Tehsildar Dhamtari drawn the proceedings on the basis of some memo issued by the Sub Divisional Officer (R), Dhamtari. He would submit that the railways not being properly noticed or not having moved the application, the said proceedings are not binding on railways. Even otherwise, Tehsildar cannot decide the title of any of the party under some proceeding wherein a memo issued by the SDO(R) was under consideration.

4. Having heard learned counsel for the parties and having perused the papers, it appears, the railways has issued the notice to the petitioners for removal of encroachment and handing over the vacant possession. The petitioners have not produced any document showing any title in their favour. They are not claiming any relief to the effect that they are entitled to hold the property on the strength of any grant by the State Government or the railways. On the other hand learned counsel for the railways would show to this Court copy of the khasra papers showing the railways as owner of the property.

5. In the matter of Ahmedabad Municipal Corporation Vs. Nawab Khan Gulab Khan And Others 1, it has been held by the Supreme Court that encroachment on pavement/public street or any government land ought not to be countenanced and the same has to be removed expeditiously in the interest of public and the administration. It is held therein that in the case of encroachment of recent origin, there is no need of following the principles of natural justice, however, in cases where the encroachment is not of recent origin, notice of 10 days or two weeks for removal of encroachment would be sufficient compliance.

6. Similarly, in the matter of Jagpal Singh & Ors. V. State of Punjab & Ors. 2, the Supreme Court has held in paras-13 & 22:-

"13. We find no merit in this appeal. The appellants herein were trespassers who illegally encroached on to the Gram Panchayat land by using muscle power/money power and in collusion with the officials and even with the Gram Panchayat. We are of the opinion that such kind of blatant illegalities must not be condoned. Even if the appellants have built houses on the land in question they must be ordered to remove their constructions, and possession of the land in question must be handed back to the Gram Panchayat. Regularizing such illegalities must not be permitted because it is Gram Sabha land which must be kept for the common use of villagers of the village. The 1 (1997) 11 SCC 121 2 AIR 2011 SC 1123 letter dated 26.9.2007 of the Government of Punjab permitting regularization of possession of these unauthorized occupants is not valid. We are of the opinion that such letters are wholly illegal and without jurisdiction. In our opinion such illegalities cannot be regularized. We cannot allow the common interest of the villagers to suffer merely because the unauthorized occupation has subsisted for many years.

22. Before parting with this case we give directions to all the State Governments in the country that they should prepare schemes for eviction of illegal/unauthorized occupants of Gram Sabha/Gram Panchayat/Poramboke/Shamlat land and these must be restored to the Gram Sabha/Gram Panchayat for the common use of villagers of the village. For this purpose the Chief Secretaries of all the State Governments/Union Territories in India are directed to do the needful, taking the help of other senior officers of the Governments. The said scheme should provide for the speedy eviction of such illegal occupant, after giving him a show cause notice and a brief hearing. Long duration of such illegal occupation or huge expenditure in making constructions thereon or political connections must not be treated as a justification for condoning this illegal act or for regularizing the illegal possession. Regularization should only be permitted in exceptional cases e.g. where lease has been granted under some Government notification to landless labourers or members of Scheduled Castes/Scheduled Tribes, or where there is already a school, dispensary or other public utility on the land.

7. Considering the above settled legal principles and in view of the fact that the petitioners have not placed before this Court any document proving their title or entitlement to remain in occupation of the land, all the writ petitions are disposed of with a direction that the Sub Divisional Officer (R), Dhamtari shall demarcate the area to ascertain as to what exact area is owned by the railways or the State Government. Demarcation shall be carried within a period of one month from today. On the basis of finding on the demarcation, which should be carried on in presence of the petitioners, the railways or the State Government, as the case may be, shall proceed with the removal of encroachment, in accordance with law.

8. Till the demarcation is carried on or for a period of one month from today, the subject demolition shall remain stayed. The petitioners shall co-operate in the demarcation proceeding, failing which the protection may not inure to their benefit.

9. Certified copy today.

Sd/-

Judge Prashant Kumar Mishra ashu

Source : https://indiankanoon.org/doc/75751037/

V.V. George vs. The District Collector [Order dated 04.07.2017]

HIGH COURT OF KERALA

W.P(C).No.19733 of 2017 (N) (04/07/2017)

The petitioner challenges Exhibit P6 order passed under the Kerala Land Assignment Rules, 1964 [for brevity "Assignment Rules"] and the consequential proceedings taken by Exhibit P7 under the Kerala Land Conservancy Act, 1957 [for brevity "Conservancy Act"]. The ground raised is that he being the person in possession was never issued with notice under the Conservancy Act. Exhibit P7 ordered eviction from 22 cents of property in Survey No.62/10-C and 62/28-A in Kanan Devan Hills Village of Devikulam Taluk in Idukki District. The petitioner is said to have obtained possession of the said land from one Thomas Michael, who obtained a grant of 22 cents of land by proceedings at Exhibit P1 dated 10.12.1986. Another 3.4 cents of land, contiguously lying was also put in possession of a partnership; in which Thomas Michael was a partner, as evidenced by Exhibit P2. In the said property the petitioner has been running a home-stay for long and the eviction notice under the Act was issued in the name of the predecessor-in-interest of the petitioner. The petitioner is sought to be evicted, even without a notice to him, is the contention urged.

2. It is argued by the learned Senior Counsel appearing for the petitioner that though Exhibit P1 was initially for a period of three years, renewal fees were paid by Thomas Michael upto 1999-2000. The petitioner, together with a partnership firm, was carrying on business in tea in the said land; from which business, the partnership withdrew and agreed for transfer of licence in the name of the petitioner. The petitioner also has filed a detailed reply affidavit, producing various documents to buttress the above contention. Exhibits P11 and P12 are specifically referred to. Exhibit P12, comprising of two communications, are addressed to the Company which executed Exhibit P2 agreement with the partnership firm. Therein, it is stated that the partnership along with the petitioner was carrying on tea business and that the licence agreement may be renewed in the name of the petitioner. Exhibit P11 is addressed to the Grama Panchayat, which is also on similar terms; upon which the petitioner was also granted D&O Licence, based on which he has been continuing in the premises. The licence issued by the Munnar Grama Panchayat in 2007 and 2017 are also produced as Exhibits P4 and P5. It has to be immediately noticed that though the petitioners contention is that he had been carrying on business in tea, the license issued is for lodging and home-stay.

3. The learned Additional Advocate General appearing for the State takes me through Exhibit P1 to contend that it was only a temporary grant for three years and there could never have been a renewal of the same. Clause (3) of the grant, which is in the form of Appendix VII under the Kerala Land Conservancy Rules, 1958 [for brevity "Conservancy Rules"], prohibits any transfer of the rights of the grantee. It is pointed out that Exhibit P3 notice was issued in the year 2007 against the petitioner. In the counter affidavit, it has been specifically pointed out that Thomas Michael had filed an application for assignment alleging that he was in possession of the land from 1971. However, the Property Assessment Register 1991-1992 to 1996-97 of the Munnar Grama Panchayat [Exhibit R2(b)] shows the building in the property, to be that owned by the Public Works Department. The Assistant Engineer, PWD informed the Tahsildar about the building having vested with the PWD [Exhibit R2(c)]; on the basis of which the application for assignment was rejected by the Tahsildar.

4. Appeal was filed against the order; in which by Exhibit R2(d) there was a remand made. In compliance with Exhibit R2(d), the Tahsildar, after hearing the applicant, rejected the application for assignment as per Exhibit R2(e). Based on Exhibit R2(e) further proceedings were also issued as per Exhibit R2(f). The conditions for a valid assignment are house construction, agriculture purpose and beneficial enjoyment; none of which is available in the instant case, asserts the learned Additional Advocate General. It is also pointed out that the objection of absence of notice cannot be raised by the petitioner since admittedly he is a partner of the original grantee. The learned Senior Counsel for the petitioner would, however, refute the contention of partnership and claim that the petitioner had been carrying on business by himself and not under partnership. It is also argued that the Government lands in KDH Village are similarly possessed by more than 100 persons, which has been proposed to be regularised; as per the newspaper reports produced along with the reply affidavit. The learned Additional Advocate General stoutly denies any move for regularisation.

5. Thomas Michael under whom the petitioner claims possession was continuously before the authorities and had suffered various orders which eventually has led to the eviction under the Conservancy Act. In passing it is to be noticed that Exhibit P6 order refers to the non appearance of Thomas Micheal despite notice, in the appeal under the Assignment Act and the Head Clerk of the Sub-Collector's Office having met him personally at his residence when he denied having made any application or appeal under the Act. Still there was appearance of an Advocate on 12.04.2017 and 03.05.2017, when the appeal was heard and the impugned order passed. The application for assignment also having been dismissed and the appeal too, by Exhibit P6, there can now be no rights claimed by the person who was originally given the grant and put in possession of the property and in such circumstance the petitioner, who is a rank trespasser, can have no right greater than that of the original grantee.

6. Exhibit P1, as is argued by the State, is a temporary grant of State land for temporary occupation for three years. Clause (3) of Exhibit P1 also prohibits transfer "to any other persons the rights hereby conveyed". Though the same had been permitted, with the previous sanction of the authority who has made the grant, a reading of Appendix VII as appended to the Rules would indicate that the provision for sanction has been done away with in 1966 itself. In any event, the petitioner does not have a contention that the transfer to him has been sanctioned by any authority. The learned Senior Counsel has contended that there was no alienation effected and he was only in permissive occupation by the original grantee. Even that cannot be countenanced, since the temporary occupation awarded to the grantee could not have been transferred to the petitioner going by the specific provision therein. Further if the claim is only of a permissive occupation as has been already found, the petitioner cannot have a greater right than the original grantee.

7. Clause (6) of Exhibit P1 indicates that the grant was made for 'putting up a shop'. It is the specific contention of the State in its counter affidavit that the original grantee established an arrack godown, in the building existing in the property even at the time of the grant; which has not been denied by the petitioner in the detailed reply affidavit filed. The alleged permissive occupation was also for carrying on a business in tea. Admittedly now the petitioner is carrying on a home-stay. This Court has already considered the consequence of putting to use the lands assigned; for other purposes than which is specifically intended. It would result in revocation of such assignment, as held in Haridas v. State of Kerala [2016 (4) KLT 707]. Herein, it is to be noticed that there is not even an assignment made and the grant is only for a temporary occupation for three years, for putting up a shop.

8. The definition of "shop" has also been considered by this Court in W.P.(C) No.38287 of 2016, vide judgment dated 21.12.2016 [Madhu John v. State of Kerala & Others]. This Court was dealing with an assignment under the Kerala Land Assignment (Regulation of Occupation of Forest Land prior to 01.01.1997) Special Rules, 1993 (for brevity 'the Special Rules of 1993'); wherein assignment could be made inter alia for shop sites; which was held to be not covering the category of buildings constructed for lodging houses. The reasoning would squarely apply here too and though there was no assignment, the original grant was only to put up a shop; in which now a home-stay is carried on.

9. Exhibit P6 order elaborately considers the issue. It is found that even Thomas Michael was continuing unauthorisedly in the land after the initial grant of three years. As was noticed, Thomas Michael, on being contacted, had allegedly stated that he had not filed any application or appeal under the Assignment Act or Rules. But, Counsel has appeared and the matter was heard before orders were passed. It was found that the building existing in the land was shown in the Register of the Panchayat as belonging to the Public Works Department and later the possession is, as is seen from the Register of the Panchayat, on one M.M.Joseph. The Register has also noticed the ownership of the building in the column for "ownership: as "Assistant Engineer, P.W.D." and in the column for "enjoyment" as being with "Joseph Michael". The licence issued with respect to the property by the local authority is in the name of V.V.George. The Sub Collector finds that the land in question is "puramboke" as defined under Section 4 of the Conservancy Act and is a property reserved by the Government for public purposes and, hence, not assignable. The subject land had not been included in the list of assignable lands and the buildings erected there existed at the time of original grant and belongs to the PWD of the State. The transfer of possession is found to be in violation of the original grant and the public need for establishing a Village Office in the said land is also specifically referred to. This Court does not find any reason to interfere with the same.

10. This Court has to accept the argument of the State that the petitioner is a rank trespasser and notice was served on the original grantee at every stage; who has not even been made a party in the present writ petition. As is seen from the documents produced by the petitioner along with the reply affidavit, Exhibits P11 and P12, the partnership firm was carrying on the business along with V.V.George, the petitioner. The reference to Section 12 of the Conservancy Act made by the learned Additional Advocate General is very pertinent. A notice has to be issued only to the occupant or his agent. The contention is of a joint operation carried on by the petitioner and the partnership firm. One of the partners being the original grantee, having been issued with notice, there can be no claim of absence of notice.

11. Poulo v. State of Kerala [1976 KLT SN 23 (Case No.52)] and Muhammed Kutty v. Tahsildar[2013 (1) KLT 133] are decisions with respect to the requirement of a notice and the necessity to show the exact description of the land from which eviction is sought. It has already been found that the original grantee has been issued with notice and that satisfies the requirement of Section 12. As far as the description of the land, the eviction is sought from 22 cents of land. There is in existence 3.5 cents of land in the possession, which has to be demarcated.

12. As was admitted, the petitioner is carrying on a home-stay in the building existing in the property, which definitely is not the purpose intended by the original grant at Exhibit P1. The orders of the Tahasildar specifically find that the grant was never renewed and even the grantee had been, in illegal occupation after the three years from Exhibit P1. The petitioner also cannot be said to be in permissive occupation, since the rights under the grant cannot be conveyed in any manner. Though there is a contention that Thomas Michael paid the renewal fees upto 1999-2000, there is nothing produced to substantiate the same. Again, admittedly no amounts were paid after 2000. Thomas Micheal , himself has been found to be in illegal occupation of the property after the expiry of the period of grant of three years. The eviction got delayed only due to the proceedings initiated for assignment, which has now been concluded. The petitioner is found to be a rank trespasser in the property, if at all, he is in occupation.

13. One other ground raised by the State is that they are in dire need of the land and building for housing the Village Office to bring into effect the sanction for bifurcating KDH Village into two and forming the new Munnar Village. There is dearth of suitable land within Munnar Town and this particular land with a building is best suited for the purpose and the immediate public need also warrants the eviction. Sufficient support can be garnered from the judgment of the Hon'ble Supreme Court in Jagpal Singh and Others v. State of Punjab and Others [2011 (11) SCC 396], wherein large scale encroachments by unscrupulous land grabbers using muscle, money and political clout had been deprecated by the Hon'ble Supreme Court. The Hon'ble Supreme Court had directed all the State Governments in the Country to prepare schemes for eviction of illegal/unauthorised occupants of Government lands or lands vested in the local authorities. The directions are relevant for all times and the lethargy of the authorities cannot confer new rights on the encroachers. There is no requirement for a special scheme in the State since the Conservancy Act is in force and it grants ample power to the State and the authorities constituted there under to proceed for recovery of what belongs to the State. It is trite that public interest is paramount and even in the case of privately held lands, deprivation of property is possible, subject to the holder being amply compensated and the State resorting to acquisition. In the present case the petitioner does not have any claim for valid possession of the government land, either directly or indirectly.

14. The learned Senior Counsel for the petitioner quite conscious of the fate of the writ petition, sought for three months time to vacate the premises; which is stoutly opposed by the learned Additional Advocate General. Considering the entire circumstances, the time sought for by the petitioner shall be granted, provided the petitioner permits the Revenue authorities to immediately and peacefully enter the premises and carry out an inventory in the presence of the petitioner. Survey, if any, shall also be carried out and the petitioner shall be permitted to take out his personal belongings from the property. If the petitioner does not permit such entry of the Revenue officials, then appropriate action shall be taken to proceed with the eviction in accordance with law.

15. Much has been argued by the petitioner of other similar encroachments, of larger extents being continued with the tacit approval of the Government and its authorities. First and foremost such an illegality, even if existing, would not enable an encroacher to justify his encroachment. The contention with respect to other illegal occupants in the area being regularised is only on the basis of newspaper reports. This Court would desist from making any sweeping comments or issuing any broad directions, based merely on paper reports.

16. Suffice to notice that this Court had in Haridas specifically noticed an earlier judgment, wherein encroachers were directed to be evicted and had also directed the Government to look into the encroachments and violations of terms of assignment to get back Government lands. The observations are extracted hereunder:

"19. This Court in arriving at the above findings is further fortified by the judgment of a learned Single Judge dated 13.08.2009 in W.P.(C) No.9605 of 2008 (K.R. Ramanan & Another v. Kerala State Pollution Control Board & Others). Similar contentions were raised therein, wherein the factual aspects differed only on account of the assignment having been granted under the Special Rules for Assignment of Government Lands for Rubber Cultivation, 1960, in which lands; quarrying operations were conducted. The quarry owners 

therein also raised similar arguments of the quarrying permits being issued by the Government and the royalty having been regularly paid to the Government. Based on the specific terms of assignment, which was for the purpose of rubber cultivation, it was held that a possession certificate granted by the Village Officer to apply for quarrying permit or issuance of the quarrying permit by the Geologist would not confer any right on the petitioners to carry on an activity in the assigned lands which are different from the specific purpose for which the assignment was made. Similar conditions in the Special Rules of assignment were noticed to find that the lands are not only liable to be taken back by the Government but also the owners are liable to be proceeded against for the entire value of the granite stones quarried from the property. The silence of the Tahsildar and the Geologist in the counter affidavits filed with respect to the violations of the conditions of the patta was noticed with surprise. There were directions issued to cancel the Pattas issued in that case and also to take action against similarly situated assignees. The reliance placed by the petitioners on Annexure R2(c) judgment is irrelevant since the learned Single Judge reserved the right of the State to proceed for violation of terms of assignment; which is the specific ground raised herein by the State.

20. It is quite disconcerting that despite the various directions issued by this Court time and again; two of which as noticed in the afore-cited judgment and also in the matter pending before the Division Bench, has not changed the situation a bit. The Revenue authorities, a law unto themselves, have been violating the provisions and colluding with the assignees causing gross damage to the ecology and environment. Be that as it may; the petitioners herein were quite aware of the conditions of assignment; though their ignorance, if at all, would have been of little consequence in the teeth of the statutory prescriptions. The relaxation sought for, having not been granted, the petitioners commenced and continued the construction at their risk and peril. They cannot now turn round and contend that the revenue authorities led them to believe that a construction could be carried on in the assigned land and in that belief considerable monies were expended to commence and continue a construction.

(emphasis supplied)

17. Hence, there is no dearth of legal precedents of the Hon'ble Supreme Court and the jurisdictional High Court to trigger the Government into action to take back what is due to the people and to put it to public benefit. The Legislature too has brought in enactments to proceed for such recovery. What is required is the political will to proceed and the official vigor to implement. If either is dampened then it is the public interest that is compromised. Is it too much for the citizenry to expect the Government, who came to power with the simple pledge; that everything will be set right, to act, positively and effectively?

The writ petition is dismissed. Parties are left to suffer their respective costs.

Source : https://indiankanoon.org/doc/70566202/

The Panchayats Meant to Protect Uttarakhand's Forests Are Under Threat

Dilution of powers and a lack of funds have contributed to the current crisis plaguing the system of community forest management.

Isha Naaz and Geetanjoy Sahu
19/JUL/2018

Van panchayats or village forest councils, once known as powerful and effective bodies for managing and protecting forest areas – including from forest fires – in Uttarakhand, are under serious threat today.

They were constituted during the colonial period. The British officials declared all the useful forest area as the state’s property, which restricted its use by local inhabitants and resulted in protests across the hill regions in Uttarakhand. This led to the appointment of the Kumaon Forest Grievances Committee which made 30 recommendations in its report.

History of van panchayats

On the basis of these recommendations, the British officials recognised the role of communities in the management of forests, and in 1931, the Forest Panchayat Act was enacted under Section 28(2) of the Indian Forest Act, 1927. The Act resulted in the formation of village forest councils with powers to design and implement the rules for accessing and distributing forest resources, monitoring them, imposing penalties on violators, and generating and judiciously using income for forest welfare.


Over the last eight decades, the number of van panchayats in Uttarakhand has increased multifold. Nearly 71% of the state’s total geographical area is covered under different classes of forest – 45.4% is classified as reserve forest, 8.92% as civil and soyam forest, 0.18% as protected forest, 13.41% as panchayati forest and 0.29% as private forest. Van panchayat areas are carved out of civil and soyam forests. While the official record suggests that at present there are 12,167 van panchayats engaged in the management of 7,32,688.9 hectares of forest area, the ground reality gives a bleak picture.

What’s behind the current crisis?

Recent discussions with government officials and members of van panchayats in several villages in Uttarakhand reveal that these bodies are no longer the ones framing the rules and regulations over the use, access and management of forest resources under their jurisdiction. The current state of van panchayats has not reached the nadir all of a sudden, the decline of their powers was a long process and goes back to the 1970s. The current crisis is largely due to the manner in which the forest and revenue departments exercise their powers and a lack of coordination between them.

The post-independence period has witnessed a series of amendments to the Van Panchayat Act in 1976, 2001, 2005 and 2012, and each amendment diluted the powers of van panchayats and bureaucratised and centralised the decision-making power in the hands of forest and revenue department officials. For example, in the initial Act of 1931, no officer was to intervene in the decision-making power of a van panchayat. However, under the 1976 amendment, one special officer was appointed which rose to five officials in 2001 and then numerous officials in 2005 who now supervise the working of van panchayats.

Dilution of power

While the 1931 Act empowered the van panchayats to design their micro plan, under the amendment of 2005, the traditional rights were subjected to the micro plan of the forest department. Collection of forest resources is to be done within the prescribed limit of the micro plan. The district forest officer is now given power to prepare a composite plan of all van panchayats in her jurisdiction.

The forest councils have been further weakened as most of their powers have been usurped by the administration that they earlier enjoyed. For example, earlier the sarpanch (head of van panchayat) enjoyed the power to sanction trees for household use to the members of the council. This was limited to one tree in 1976. Similarly, the other crucial powers of van panchayats, like imposing a fine up to Rs 500 for the violation of rules, selling forest produce in the local market and appointing a forest guard, now require permission from the district forest officer.

Lack of funds

Additionally, the grants under different schemes are transferred to the bank account jointly held by the sarpanch and the secretary who is the employee of the forest department or civil and soyam department. Financial support to van panchayats has also declined significantly. For example, funds allocated to the councils for afforestation and other activities by forest department has been reduced to Rs 4.26 crore in 2016-17 from Rs 11 crore in 2015-16 and Rs 15.61 crore in 2014-15.

Vacant posts and overlapping authority

Information obtained from the Uttarakhand Forest Department also suggests that there is huge vacancy of forest guards across the state as 33.4% of the posts are lying vacant. Due to this, each forest guard is under tremendous pressure to patrol more than a thousand acres of forest land in several areas.

The year 2017 witnessed 790 incidents of forest fire – 490 in the reserve forest area and 300 in the civil and soyam/van panchayat forest area, affecting 1,228.04 hectares. In the absence of financial support and autonomy to manage forests, villagers are not motivated to prevent forest fires.

The lack of coordination and overlapping authority and control between the revenue and forest department has further contributed to the current decline of the forest councils. While the revenue department exercises its authority in the administration of the councils and conducting elections, the forest department/civil and soyam department is concerned with the preparation of working plans, tapping resin, marking trees for auction and granting permission for extracting non-timber forest produce and diversion of forests for non-forest purposes.

Information from the forest department office suggests that elections have not been conducted for about 5,824 van panchayats – 48% – in the last eight years. The following graph shows percentage-wise number of van panchayats, areas under their jurisdiction and absence of elections since 2011 across different districts of Uttarakhand.


In addition to increasing bureaucratisation, lack of financial support, dilution of decision-making powers of van panchayats and the growing agrarian crisis in the hill regions has forced thousands of households to migrate to plain areas and other states who at some point were dependent on forests. The state of Uttarakhand has also not implemented Forest Rights Act effectively. Till date, not a single community forest right has been recognised for van panchayat villagers in Uttarakhand who have been living and dependent on forest resources for three generations prior to December 13, 2005.

There is an urgent need to address the current crisis, which includes financial and administrative powers of van panchayats, implementation of the Forest Rights Act and resolving the overlapping and lack of coordination between revenue and forest department. The achievements of the forest councils till the point they began declining should encourage the administration to empower them and provide technical and resource support to ensure both the livelihood requirements of people and protection of forests in a sustainable manner.

Isha Naaz is a PhD scholar at the Tata Institute of Social Sciences and Geetanjoy Sahu teaches at the Tata Institute of Social Sciences, Mumbai.


https://thewire.in/environment/uttarakhand-van-panchayat-forest-council-rights-protection

Residents Ward No. 11 V State of Chhattisgarh

HIGH COURT OF CHHATTISGARH

WPPIL No. 135 of 2017 (19/06/2018)

Hon'ble Shri Thottathil B. Radhakrishnan, Chief Justice Hon'ble Shri Parth Prateem Sahu, Judge Order on Board Per Thottathil B. Radhakrishnan, Chief Justice 19/06/2018

1. We have heard the learned counsel for the Petitioner, the learned Additional Advocate General and the learned counsel for Municipal Corporation, Bilaspur.

2. Though amendments have been carried out, we are not inclined to issue any further notice to the Nagar Panchayat Tifra/Respondent No. 7 for the reason that the relief that should come through this Public Interest Litigation is not one that could come through, or as against, the said Nagar Panchayat.

3. The complaint in this Public Interest Litigation is about the encroachment into the limits of a public water body, which is a Talab known as Madho Talab in Tifra village of District Bilaspur.

4. Jagpal Singh and others v. State of Punjab and others; (2011) 11 SCC 396, was rendered by the Hon'ble Supreme Court of India laying down the law that illegal encroachments of village/Gram Panchayat lands shall not be regularized. Certain exceptionally exceptional situations were carved out in that judgment, to be utilized in favour of the marginalized, socio-economically challenged or other sectors which have been mentioned in that judgment. The Apex Court issued directions to all State Governments to prepare schemes for eviction of illegal unauthorized occupants of Gram Sabha, Gram Panchayat, Poramboke and Shamlat lands. Schemes were to be formulated by the State Governments to provide for speedy eviction of illegal occupants after giving show-cause- notice and brief hearing. Implementation of the directions issued in that case were also to be monitored from time to time through reports to the Apex Court. Paragraphs 23, 24 and 25 of the said judgment are as follows:-

"23. Before parting with this case we give directions to all the State Governments in the country that they should prepare schemes for eviction of illegal/ unauthorized occupants of Gram Sabha/Gram Panchayat/ Poramboke/ Shamlat land and these must be restored to the Gram Sabha/Gram Panchayat for the common use of villagers of the village. For this purpose the Chief Secretaries of all State Governments/Union Territories in India are directed to do the needful, taking the help of other senior officers of the Governments. The said scheme should provide for the speedy eviction of such illegal occupant, after giving him a show cause notice and a brief hearing. Long duration of such illegal occupation or huge expenditure in making constructions thereon or political connections must not be treated as a justification for condoning this illegal act or for regularizing the illegal possession. Regularization should only be permitted in exceptional cases e.g. where lease has been granted under some Government notification to landless labourers or members of Scheduled Castes/Scheduled Tribes, or where there is already a school, dispensary or other public utility on the land.

24. Let a copy of this order be sent to all Chief Secretaries of all States and Union Territories in India who will ensure strict and prompt compliance of this order and submit compliance reports to this Court from time to time.

25. Although we have dismissed this appeal, it shall be listed before this Court from time to time (on dates fixed by us), so that we can monitor implementation of our directions herein. List again before us on 3.5.2011 on which date all Chief Secretaries in India will submit their reports."

5. In terms of the aforesaid directions, while the State Governments are to frame schemes, it is also the bounden duty of the State Government concerned to ensure restoration of such lands to Gram Sabha and Gram Panchayat for the common use of villagers of the village concerned. The power of restoration or possession is essentially inbuilt also in the authority of the State to deal with such matters, including land conservation, land revenue etc. Therefore, the role of the Gram Panchayat or Gram Sabha or the Nagar Panchayat is only to act on behalf of the villagers and also manage such lands, which are restored from illegal occupants.

6. Hence, it is the bounden duty of the Government to proceed with action in relation to every piece of illegally occupied land which would fall within the orders and directions contained in the Apex Court's judgment in Jagpal Singh (supra). The orders and directions are to be read, understood, applied and obeyed as law laid by the Apex Court in terms of Article 141 of the Constitution. Apart from that, the constitutional command and requirement in terms of Article 144 of the Constitution is that all authorities, civil and judicial, in the territory of India shall act in aid of the Supreme Court.

7. Hence, Respondents No.1 to 5 are directed to act in obedience to the directions contained in the decision in Jagpal Singh's case (supra) and forthwith enforce the restoration of land from unauthorized and illegal occupants to the Gram Sabhas, Gram Panchayats or Nagar Panchayats concerned. This shall be immediately done in relation to Madho Talab in Tifra Village of District Bilaspur. In furtherance of the directions given by the Hon'ble Supreme Court to submit reports and having noticed that there is no effective implementation of any such scheme at least as far as Madho Talab is concerned, we direct the 2 nd Respondent to place a detailed Action Taken Report in relation to the directions in Jagpal Singh's case (supra) before the Chhattisgarh State Legal Services Authority through its Member Secretary within a period of 45 days from today. Member Secretary, Chhattisgarh State Legal Services Authority will peruse the said report and place it before the High Court through the Registrar General on the administrative side for further consideration, as may be found necessary by Member Secretary, Chhattisgarh State Legal Services Authority. It will also be open to the Chhattisgarh State Legal Services Authority to seek further directions in such matters since it is within the purview of the Legal Services Authorities Act, 1987 to seek directions for furtherance of environmental protection and ecology management. This writ petition is ordered accordingly.

Source : https://indiankanoon.org/doc/64203613/

Sannadka Community Paddy vs. State of Kerala [20.03.2017]

HIGH COURT OF KERALA

WP(C).No. 11904 of 2016 ( 20 March, 2017)

1.The petitioner is a registered Committee under the Registration Act 21/1860. It is a committee, that was formed for the purposes of upliftment of agriculturists in the Manjeshwaram Panchayath and its area of operation is stated be within the territorial limits of the Manjeswaram Panchayath. The petitioner is aggrieved by the alleged encroachment, by the 5th respondent, onto the road leading to the paddy fields owned by the members of the petitioner committee. It is the case in the writ petition that, on account of the alleged encroachment by the 5th respondent and another on to the road leading to the paddy fields, tractors, tillers and other vehicles for agricultural operations, cannot be brought to the paddy field through the road in question. It is stated that, the petitioner filed an application before the Taluk Surveyor for the purposes of getting a measurement done, of the road, in order to ascertain, whether there was any encroachment at the instance of the 5th respondent and others. By Ext.P2 report of the Taluk Surveyor, it was pointed out that there was in fact an encroachment by the 5th respondent and another to the said road. Thereafter, pursuant to an RTI application filed by the petitioner, it was informed that, the Revenue Divisional Officer(RDO) had already intimated the respondent Panchayath to take action, pursuant to the report of the Taluk Surveyor, against those who had allegedly encroached onto the road in question. On receipt of the said information from the office of the RDO, the petitioner preferred Ext.P4 representation dated 10.02.2016 before the respondent Panchayath, requesting them to take action against the encroachers, including the 5th respondent, for the purposes of removing the encroachment, so as to facilitate the easy ingress and egress of vehicles to and from the paddy fields, belonging to the members of the petitioner committee.

2. A counter affidavit has been filed on behalf of the 2nd respondent, wherein, the sequence of events leading to the communication of the RDO to the Secretary of the Manjeswaram Grama Panchayat has been detailed. It is stated that, notwithstanding the letter sent by the RDO to the Panchayath, the Secretary of the Panchayath had not initiated any action for removing the encroachment from the road that is vested with the Panchayath. In the counter affidavit filed on behalf of the 5th respondent, the 5th respondent would rely on the orders passed in a civil suit that was instituted by the 5th respondent against one Moideenkunhi, who is stated to be the Secretary of the petitioner Committee. A perusal of Ext.R5(e) order would indicate that it is an order passed injuncting the said Moideenkuhi from interfering with the peaceful possession and enjoyment by the petitioner, of property belonging to the petitioner, that was shown as the scheduled property in the suit. The injunction also restrains the said Moideenkunhi from demolishing the compound wall constructed on all four sides of the suit property. It is relevant to note that the said order, passed in the suit instituted by the 5th respondent before the Additional Munsiff's Court, Kasaragod, does not consider the issue with regard to the alleged encroachment by the 5th respondent into 'Puramboke' land. The counter affidavit of the 5th respondent also raises allegations against the bona fides of the petitioner, and also relies on documents to show that complaints have been received by the local authority with regard to the large scale conversion of paddy land at the instance of members of the petitioner Committee. The said documents are produced by the 5th respondent to throw light on the bona fides of the petitioner, while maintaining the present writ petition. Although no counter affidavit has been filed on behalf of the respondent Panchayath, the learned Standing counsel for the 3rd respondent Panchayath would submit that, the Panchayath was not in a position to take action pursuant to Ext.P4 representation of the petitioner, solely because, it was informed of the suit, that had been instituted by the 5th respondent against Sri.Moideenkunhi, who was the Secretary of the petitioner Committee.

3. I have heard the learned counsel for the petitioner, the learned Standing counsel for the respondent Panchayath, the learned counsel for the 5th respondent and the learned Government Pleader for the official respondents of the State.

4. On a consideration of the facts and circumstances of the case and the submissions made across the bar, I find that, the orders in the suit, that are relied upon by the 5th respondent in his counter affidavit, may not come to the assistance of the said respondent in insulating him from an enquiry with regard to the alleged encroachment by him into 'Puramboke' land. As has already been noted by the Supreme Court in Jagpal Singh & Ors. v. State of Punjab & Ors. [AIR (2011) SCC 1123], and followed by this Court in subsequent decisions, an illegal encroachment onto Panchayath land cannot be allowed, merely because the unauthorised occupation subsisted for several years. It is made clear in the said judgment that such unauthorised occupants are liable to be evicted since the continued unauthorised occupation for several years, by the encroachers of Panchayath land, cannot be in public interest. I also find that, a report of the RDO, based in turn on the report of the Taluk Surveyor, finds that there is a prima facie encroachment by the 5th respondent and another on to 'Puramboke' land that is vested in the Panchayath. It is on this basis that the RDO had intimated the 3rd respondent Panchayath to take action against those found to have encroached onto the 'Puramboke' land vested in the Panchayath. In my view, in the absence of any order from the Civil court that would interdict a consideration by the respondent Panchayath of the issue of encroachment, it would be incumbent upon the 3rd respondent Panchayath to act on the instructions issued to them by the RDO and take expeditious action to remove any encroachment found over the 'Puramboke' land vested in the Panchayath. Accordingly, I dispose the writ petition, with a direction to the 3rd respondent Panchayath to act on Ext.P4 representation preferred by the petitioner before it, and decide on the issue of whether or not there is any encroachment, over the road forming part of 'Puramboke' land, that is vested in the Panchayath, at the instance of the 5th respondent and others. The respondent Panchayath shall issue notices to the persons mentioned in the report of the Taluk Surveyor, which has been forwarded to it by the RDO, and thereafter, take a decision in the matter after hearing the said persons as also the petitioner, within a period of two months from the date of receipt of a copy of this judgment. I also make it clear that , in the event of the Panchayat finding an encroachment as indicated in the Taluk Surveyor's report, it shall take prompt action to remove the said encroachment, after notice to the persons concerned. The petitioner shall produce a copy of the writ petition along with a copy of this judgment, before the 3rd respondent Panchayath, for further action.

The writ petition is disposed as above.

Source : https://indiankanoon.org/doc/22660546/