Allahabad HC: Encroachment over Railway land a hindrance to development [20.01.2022]

IN THE HIGH COURT OF ALLAHABAD

Writ C. No. 30869 of 2021

Decided On: 20.01.2022

Anoop Kumar Mishra

Vs.

State of U.P. and Ors.

Hon'ble Judges/Coram:
Pritinker Diwaker and Ashutosh Srivastava, JJ.

Counsels:
For Appellant/Petitioner/Plaintiff: Vijay Kumar Rai, Ajit Singh and Arvind Kumar
For Respondents/Defendant: C.S.C., Gaurav Dhama and Rajnish Kumar Rai

ORDER

1. The writ petitioner, who claims to be a resident of village Puresoordas, Pargana Jhunsi, Tehsil Phoolpur, District Allahabad (Prayagraj) has approached this Court seeking issuance of a writ of mandamus commanding the respondents to demolish the constructions over the Plot No. 752 and other plots detailed in para 7 of the writ petition totaling 13 in number and having area 13.875 hectares stated to be recorded in the name of Railways and remove the encroachment from the plots in question.

2. We have heard the counsels for the parties at length and have also perused the record.

3. The counsel for the petitioner has filed documents to establish that the plots are the properties of the Railways. The photographs brought on record depict the extent of the encroachment over the Railway land.

4. It is contended by the counsel for the petitioner that land belonging to the Indian Railways has been encroached upon a fact which is known to the officials of the Indian Railways and yet no action has been taken by them to remove the said encroachers.

5. This court perceives encroachment over the Railway land as a menace/hindrance to development which ultimately results in the average Indian citizen being deprived of better amenities and experiences. This Court is also mindful of the numerous directions and orders that the Hon'ble Apex Court has passed and in such circumstances, even though the petitioner has not instituted a PIL, this Court exercising its extra ordinary powers vested in it under Article 226 of the Constitution of India treats the instant Writ-C, as a Writ PIL and proceeds to entertain the same.

6. The Hon'ble Apex Court in the case of Jagpal Singh and others Vs. State of Punjab and others, reported in 2011 (11) SCC 396 has taken a judicial notice that since independence, in large part of the country, unscrupulous persons using muscle powers, money power and political influence have systematically encroached on public utility land. The Court has also observed that this has been done with the active connivance with the State Authorities and local power vested interest and goondas. The Apex Court deprecated the action of the State Authorities either in allotting the public utility land in favour of a person or in permitting an encroacher to occupy such public utility land. It relied upon its earlier decision in M.I. Builders (P) Ltd. Vs. Radhey Shyam Sahu, 1999 (6) SCC 464; where the Hon'ble Supreme Court ordered restoration of a park after demolition of a shopping complex constructed at the cost of over Rs. 100 Crores.

7. The counsel for the petitioner has placed reliance on a Division Bench decision of the Patna High Court in the case of Deepak Kumar Vs. The State of Bihar and others, passed in C.W.J.C. No. 3754 of 2009 on 27.01.2010, wherein directions were issued to the Railways Administration to take concrete steps to free the Railway land from any kind of encroachment and if any fresh encroachment takes place shall immediately inform the police authorities/other district authorities and all authorities shall work in harmony to see that all encroachment is removed. A copy of the decision dated 27.01.2010 passed in C.W.J.C. No. 3754 of 2009 has been filed as Annexure No. 2 to the writ petition.

8. Recently, the Apex Court in SLP (Civil) Diary No. (s) 19714 of 2021 arising out of final judgment and order dated 19.08.2021 passed in Writ Petition (PIL) No. 222 of 2014 by the High Court of Gujrat at Ahmedabad (Utran Se Besthan Railway Jhopadpatti Vikas Mandal Vs. Government of India and others with Diary No. (s) 23559 of 2021 had the occasion to consider an issue regarding encroachment over land belonging to the Western Railways. The Apex Court vide its order dated 16.12.2021 while upholding the decision of the High Court rejecting the Writ PIL against the proposed action of demolition by Western Railways and considering the plea to provide suitable rehabilitation in lieu of the premises occupied by the concerned persons on the railway property has issued directions requiring the railways to issue notices to the illegal occupants/encroachers asking them to vacate the respective premises and on failure of such occupants to vacate, initiate appropriate action to forcibly dispossess them by taking assistance of the local administration and police force. The essence of the directions are that the railway land must be prevented from being encroached upon.

9. This Court is saddened by the attitude of indifference adopted by the officials of the Indian Railways, some of whom are under a direct mandate to keep encroachments under check. There is a special enactment which enables the Railways to protect its property i.e. its statutory and public trust obligation. It was open to the concerned authority to invoke the provisions of the special enactment including the Public Premises Act. For that, the Estate Officers should have moved into action in right earnest at the earliest opportunity. Even that option is not being invoked for reasons best known to the authorities. Besides, the Railways maintains a Railway Police Force whose services could be utilized to safeguard the railway property wherever it is situated. The Court has been apprised that the railways has issued the Indian Railways Works Manual. Chapter VIII of the IRWM deals with acquisition, management and disposal of land. Clause 813 deals with the verification of land boundaries. Clause 813(b) of the IRWM casts a duty on every Section Engineer to prevent or remove any encroachment that might have taken place. Further, Clause 813 (d) provides that the Section Engineer is also required to maintain a land boundaries verification register where details of encroachments are to be entered and the register itself is to be verified and countersigned by an Assistant Engineer. Clause 814 of the IRWM lays down elaborate procedure for removal of encroachments. The Clauses 813 and 814 of the IRWM are being reproduced here under:-

"813 Verification of Land Boundaries

a) Vide Para 1048 of the Indian Railway Code for the Engg. Deptt. (1993 Edition) every Zonal. Railway Administration is responsible for the demarcation and periodical verification of the boundaries and maintenance of proper records in connection with land in the possession of that Railway.

b) The Section Engineer (Works/P. Way) is responsible for maintaining railway land without any encroachments or development of easement rights. He should endeavour to prevent and remove encroachments, as and when they arise and where removal of encroachment is possible without referring to PPE act. In case where he is not able to remove them, he should report the cases to the Assistant Engineer, who will on receipt of such reports take immediate measures to remove the encroachments. Particular care is required to prevent encroachment on railway land situated above tunnels and below bridges especially Road over/Under bridges.

c) The Section Engineer (Works/P. Way) shall inspect and maintain the Railway land boundaries between stations and at unimportant stations. The Section Engineer (Works) shall inspect and maintain the land boundaries at important stations and staff colonies.

d) Maintenance of land boundaries verification Register-

Railways should maintain printed registers on the lines of Bridge Registers as at Annexure 8.1 (a) & (b) in the attached format showing "Details of Encroachments" and "Details of the Missing Boundary Stones" and action taken thereon. The entries in the register should be certified by the Section Engineer/(Works/P. Way) of the respective sections and verified/inspected by the Asstt. Engineer./DEN/Sr. DEN or other higher officers from time to time. The registers should have adequate pages so that record of inspection and verification of land boundaries for a period of 15 years can be accommodated in the register. Separate registers should be maintained for each Section Engineer (Works/P. Way)'s jurisdiction.

A certificate on the following proforma should be given by the Section Engineer once a year which is to be verified and countersigned by AEN with regard to correct demarcation of land boundaries.

Certificate for Land Boundaries verification is given below:

LAND BOUNDARIES VERIFICATION CERTIFICATE

Year ------------------------ Section ------------------------ Kms. -------------------- to ------- PWI/IOW ----------------------------- Sub Division ------------------- Division ------------ I, --------------- PWI/IOW certify that I have inspected the railway land fencings and boundary stones on my section during the year ending ----------------------------- and that they are in accordance with certified the/land plans. There have been no encroachments except at the following kilometerages that have been reported upon vide reference given against each.

DETAILS OF ENCROACHMENTS.

I further certify that wire fencing and/or boundary stones are available at all locations except at the Kilometerages shown below for which action to replace the same is indicated against each location.

DETAILS OF MISSING BOUNDARY STONES

1. I certify that railway boundaries are demarcated correctly and that there are no encroachments, except those listed above.

2. Certified that land plans pertaining to the above mentioned PWI/IOW ----------------------------------- are available with him except the following.

Asstt. Engineer/

DE.'/Sr. DEN/

Chief Engineer/General.

e) During his inspections, the Assistant Engineer should ensure that Railway boundaries are demarcated correctly and that there are no encroachments. In cases where he cannot prevail on the parties to remove the encroachments, he must report the facts with particulars to the Divisional Engineer who will take up the matter with local authorities.

814 Removal of Encroachments -a) New encroachments shall be got removed promptly under provisions of section 147 of Railway Act 1989. For old encroachments where party is not amenable to persuasion for removal of such encroachments, action should be taken under the provisions of Public Premises (Eviction of Unauthorised Occupants) Act 1971. Encroachment of railway land by railway staff also constitutes grave misconduct on their part and is 'good and sufficient reason' for imposition of major penalty after following the procedure laid down in the Discipline and Appeal Rules.

b) When an encroachment is in the process of building up, it should be removed then and there.

c) Where the encroachments are of a temporary nature in the shape of jhuggies, jhopries and squatters and where it may be difficult to take action under PPE Act the same may be got removed in consultation and with the assistance of local civil authorities.

d) Every year, at the close of financial year, detailed survey of encroachments must be made under the following categories:-

i) CATEGORY-A Encroachments by outsiders removal of which requires action under Public Premises Eviction (PPE) Act.

ii) CATEGORY- B) Encroachments by outsiders which do not require action under PPE Act (e.g. temporary occupation of land by hawkers, using Railway land for cattle, cow dung, refuse etc.)

iii) CATEGORY- C) Encroachment by Railway staff in the form of temporary huts etc.

iv) CATEGORY-D) Encroachment by Railway staff who have been allotted railway accommodation, by way of additions to the structures, unauthorised use of land for cultivation etc..

Note: Category "A" encroachment is of the hard type and Category "B", "C" & "D" encroachments are of the soft types.

e) The Section Engineer (Works) should maintain details of encroachments in a register showing their incidence and removal with necessary details as given in Annexure 8.2 (Encroachment Inspection Register).

One page of this register shall be allotted to each encroachment. A scale plan of the encroachment shall be provided on the facing side.

Once a case is opened the entries should not be discontinued unless and until the encroachment is removed. A note to that effect should be made in the register. The frequency of inspection of encroachment shall be at least once in 3 months.

Section Engineer (Works) shall give a certificate in the following proforma, once in three months, which shall be verified and countersigned by the AEN.

"I .............................................. Section Engineer (Works) certify that I have inspected the Railway land in my section during the quarter ending .................. and there have been no encroachments except at the locations shown in this register, that have been reported upon vide references given against each."

sd/-

Section Engineer (Works)

AEN should submit every month the summary of the status of removal of encroachments to the Divisional Engineer.

Monthly progress regarding additions and removal of encroachments, filing eviction cases and their progress in court of Estate Officer, in Civil Courts etc. should be submitted by Divisions to Head Quarter.

Encroachment plans to scale shall be made for every encroachment. These encroachment plans along with details of encroachment as per Annexure 8.2 should be checked and signed by Section Engineer (Works)/AEN. Records of such encroachment plans should be kept in the Divisional office and these encroachment plans should be handed over and taken over by Section Engineer (Works)/AENs at the time of change of charge.

A copy of encroachment plan should be available with Section Engineer (Works) / AEN/DEN/Sr. DEN. Any encroachment added or removed should be reflected in the encroachment plan.

A copy of encroachment plan should be handed over by the AEN to SMs/RPF inspectors (where Section Engineer (Works) is not headquartered).

814 (f) Steps to control the unauthorised use of Railway land.

Following further steps should be adopted to control the unauthorised use of railway land:-

(a) For any addition/alteration of a pucca structure, written sanction of the Divisional Engineer should be necessary. Any structure in which cement is used may be classified as pucca structure.

(b) For alteration /addition of any temporary structure, written sanction of AEN should be necessary.

(c) Plans for commercial plots at various stations should be approved jointly by Divl. Engineering and Commercial Officers and at site demarcation of the plots should be done with rail posts by Engineering Deptt. Whenever any commercial plot is licensed the Commercial Department should give a copy of the allotment letter to the Engineering Deptt. so that Section Engineer (Works) can ensure against any unauthorised use. The station Master should also have a copy of the approved plan of commercial plots at the situation. Station staff, including Commercial staff posted in Goods Sheds should firstly ensure that commercial plots are not misused and secondly, in case of any misuse and/or encroachment should immediately report it to the Engineering Deptt. for eviction and other action that may be necessary. This will also apply to the cases of any licensing for shops, tehbazari etc. in the circulating area and goods shed premises.

(d) To prevent imminent encroachments on vacant railway land, planting of suitable trees/ shrubs including quick growing thorny trees like Prosopis Juliflora (Vilayati Babul) should be adopted.

(e) Eviction process shall include interactions:-

(i) Identification of the existing encroachments.

(ii) Ensuring that all the cases under the PPE Act have been filed.

(iii) Estate Officers should expedite finalisation of the cases pending with them.

(iv) Action for possession in accordance with the extant orders where eviction orders are received.

(v) Mobilisation of help of Civil Authorities by formal/informal requests at different levels till the required assistance is forthcoming.

(vi) Cases directed to the courts to be pursued for early finalisation with the help of the Railway Advocates."

10. From the above, it is more than apparent that the railways administration has miserably failed in its duty to prevent encroachment over its land. We under the circumstances deem it fit to issue the following directions:-

i) The railways authorities shall immediately issue notice to the occupants of the railways land asking them to vacate the land within three weeks of the notice being served on them.

ii) If the occupants/encroachers fail to vacate the land despite notice having been served, it shall be open to the railway authorities to initiate appropriate action to forcibly dispossess such occupants/encroachers and demolish or remove the unauthorized structures raised by them by taking assistance of the local police force. The Superintendent/Commissioner of Police of the concerned area is expected to ensure that adequate police force is deployed on the site and surrounding areas including protection to the officials/staff engaged in the demolition of the illegal structures and eviction process.

iii) The railways administration is expected to initiate civil/criminal action against the encroachers/unauthorized occupants on the railways properties at the earliest once it is brought to the notice of the concerned official of the railways.

iv) The Railways Administration as also the local administration and the State Government is expected to initiate appropriate action against the erring persons, including the officials of the concerned establishment for allowing and tolerating such encroachment and for not taking corrective action for removal of the encroachment at the right time.

v) The Railways Administration is also expected to initiate an enquiry to check the veracity of the land boundaries verification register so maintained and if everything is found to be in order, to ascertain as to why no steps were taken to remove the encroachments. The railway administration shall also ensure that no new encroachments are made on the areas that are being cleared by way of the order passed by this Court and ensure that any and every encroachment is duly reported in the land boundaries verification register and the requisite follow up action is taken at the earliest.

11. We hope and trust that the above directions would go a long way in ensuring that no similar case is instituted and the menace of railway land being encroached is finally put to rest.

12. With the aforesaid directions, the writ petition is disposed of.

Anoop Kumar Mishra vs. State of U.P. and Ors. (20.01.2022 - ALLHC) : MANU/UP/0120/2022

Himachal Pradesh HC: Encroachment over Charagah land cannot be justified in any circumstances [05.01.2022]

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA 

CIVIL WRIT PETITION No.92 of 2022 

On the 5th day of January, 2022 

BEFORE 

HON'BLE MR. JUSTICE MOHAMMAD RAFIQ, CHIEF JUSTICE  

HON'BLE MS. JUSTICE JYOTSNA REWAL DUA 

Between

Amar Chand, Aged 67 Years, S/o Shri Hira Nand, R/o Village Beludhank/317, Tehsil Karsog, District Mandi, H.P.                                                                                                                          .....PETITIONER 

(By Mr. R. Bhender Kumar Chaudhary, Advocate) 

 AND

 

State of Himachal Pradesh through Collector, District Mandi, H.P.

       ......RESPONDENT 

(By Ms. Ritta Goswami, Additional Advocate General) 

This petition coming on for admission this day, Hon'ble Mr. Justice Mohammad Rafiq, passed the following: 

ORDER

This writ petition has been filed by the petitioner-Amar Chand, challenging the order dated 26.11.2021 (Annexure P-6), passed by the Financial Commissioner (Appeals), Himachal Pradesh in Revision Petition No.48 of 2021, whereby the revision petition filed by the petitioner has been dismissed and the notice dated 16.12.2021 (Annexure P-7), vide which the petitioner has been called upon to remove the encroachment from the Charagah land.

2. The basic order passed against the petitioner is Annexure P-3, dated 21.06.2016, passed by the Assistant Collector Grade-I, Karsog, District Mandi. In the aforesaid order, the petitioner is a trespasser over the government land comprising in Khasra No.236/1 measuring 0-2-10 Bigha, Khasra No.236/2 measuring 0-8-12 Bigha, Khasra No.989/251/1 measuring 0-0-12 Bigha and Khasra No.989/251/2 measuring 0-0-12 Bigha, total Kita 4, measuring 0-12-6 Bigha in Mohal Beludhank, Tehsil Karsog, District Mandi, which are recorded as 'Charagah Bila Drakhtan'. The petitioner filed appeal against that order before the Collector, Sub-Division Karsog, who vide order dated 27.01.2017, dismissed the appeal by a detailed order. Thereafter, the petitioner filed further appeal before the Divisional Commissioner, Mandi Division, who dismissed the same vide order dated 23.10.2019. None of these orders are under challenge in the writ petition.

3. In view of the law laid down by the Hon'ble Supreme Court in Jagpal Singh and others Versus State of Punjab and others, (2011) 11 SCC 396, the encroachment of the petitioner over the Charagah land cannot be justified in any circumstances nor any such encroachment can be regularized by the Government.

4. Faced with this situation, learned counsel for the petitioner submitted that since the petitioner has been having constructed house over the disputed land for quite some time, his alternative prayer for allowing him to vacate the land within a period of three months may be considered.

5. The petitioner may for that approach the Tehsildar concerned with an undertaking to positively vacate the aforesaid premises within a period of three months, who may in his discretion, consider not executing the eviction order during that period. In case the petitioner does not vacate the aforesaid premises within the said period, it shall be open for the respondent to proceed according to law.

With these directions, the writ petition stands disposed of, so also the pending miscellaneous application(s), if any. 

                         (Mohammad Rafiq)                                          (Jyotsna Rewal Dua)  

                              Chief Justice                                                            Judge

January 05, 2022

Gujarat HC: Less graves in a kabrastan is no ground to vest the land in Govt. [02.02.2022]

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/Special Civil Application No. 4946 of 2009

Decided On: 02.02.2022

Islahul Sunni Muslim Khidmat Trust

Vs.

Collector

Hon'ble Judges/Coram: Dr. A.P. Thaker, J.

Counsels:
For Appellant/Petitioner/Plaintiff: M.T.M. Hakim
For Respondents/Defendant: Nikunj Kanara, AGP

JUDGMENT

Dr. A.P. Thaker, J.

1. By fling this petition, the petitioner-Trust has prayed to quash and set aside order passed by Collector on 16.9.2006, which is at Annexure-F.

2. Brief facts of the case are that by Revenue Entry No. 246 posted in August 1947, the land bearing Survey No. 1 of Village Champaner admeasuring 2 acres 25.5 Gunthas was allotted for the graveyard (Kabrastan) in the village Form No. 6 after following procedure prescribed under the Bombay Land Revenue Code. It is further the case that entry No. 246 was posted, which also reflects the order dated 3" March, 1947 passed by Collector for the allotment of such land to use the same for the purpose of Kabarstan. On 31st October, 1950 entry No. 283 came to be recorded and said survey No. 1 was bifurcated into land survey numbers namely 1/1/A and 1/1/B. 1/1/A was admeasuring acres 4096.18 Gunthas while survey No. 1/1/B which was allotted to the Kabrastan was admeasuring 2 acres and 27 Guthas. Accordingly, in the Form No. 7/12 also said land is shown as Kabrastan.

2.1. The petitioner trust was registered in the year 1996. After forming of the petitioner-Trust and on making an application to the revenue authorities, by entry No. 689 dated 22.7.1997 the name of the trust was entered into village Form No. 6. The name of the trust was shown against the property bearing survey No. 1/1/B. Since 1997, the petitioner trust is taking care of all affairs of the property situated in survey No. 1/1/B. Since 1997 the petitioner trust has seen so many dead bodies being buried in the land bearing survey No. 1/1/B (Kabrastan). In 2004-2005 and very recently in August, 2008 dead bodies of Muslims staying in and around Champaner are brought to Champaner and have been buried in the Kabrastan. Some of the instances of burial can be seen from the certificates issued by Panchayat showing the burial. The petitioner trust is having possession of the land in question. Despite the above undisputed facts, the respondent passed an order on 16.9.2006 and snatched away the Kabrastan land. It is pertinent to note that entry No. 783 dated 142.2007 was also posted in the revenue record.

3. Heard Mr. Hakim, learned advocate for the petitioner and Mr. Nikunj Kanara, learned AGP for the respondent-State at length.

4. Mr. Hakim, learned advocate for the petitioner has submitted that the respondent authority, while passing the impugned order has exceeded the jurisdiction vested in them and thereby committed an illegality and/or irregularity and if the impugned order is allowed to stand, then the same will cause gross miscarriage of justice and, therefore, the order impugned in the present petition is liable to be quashed and set aside. He has further submitted that the order impugned is misuse of power done by Collector by ignoring normal and regular procedure prescribed by law and the Collector has not even bothered to follow the constitutional mandate. He has submitted that the impugned order suffers from a clear breach of principles of natural justice and equity. The petitioner submits that the name of the trust was recorded in the revenue record in the year 1996. In this regard, he has relied upon annexure-D to the petition. He has also produced village form No. 7-12 showing entries that the land in question is "kabrastan". He further submitted that inspite of this fact the respondent did not bother to call upon and provide hearing to the trust before passing the impugned order.

4.1. He further submitted that even otherwise the perusal of the impugned order makes it clear that the Collector had initiated the proceedings unilaterally and the same were concluded unilaterally. It clearly appears from the impugned order that the Collector did not thought it fit to verify the fact regarding use of the Kabrastan and only relied on the letter of the Mamlatdar.

4.2. He also submitted that the Collector had committed grave error in vesting the Kabrastan land in the Government. It is submitted that as pronounced by this Hon'ble Court as well as the settled principle of law is that once a Kabrastan is always a Kabrastan. The certificate issued by local Panchayat establishes the fact that even today also use of the land in question is for the purpose of Kabrastan. Such use cannot be closed and even if the use is closed the status of the land cannot be changed. He further submitted that even the respondents have admitted in their affidavit in reply that the land in question is used for the purpose of graveyard. He further submitted that bare reading of the impugned order makes it clear that though burial had taken place in past, this fact was ignored and with a view to deprive Muslim community of their last resting place various non existing reasons are mentioned in the impugned order. He also submitted that the entry of the impugned order was posted without following statutory requirement and the same requires to be quashed and set aside.

4.3. He has also relied upon a Judgment in the case of Syed Mohd. Salie Labbai (D), by Lrs. and Ors. v. Mohd. Hanifa (D) By Lrs. and Ors. reported in [1976] 4 SCC 782 to contend that once property became Wakf property it would continue to be Wakf property notwithstanding non-user by the Muslim community.

4.4. He has further submitted that the respondent has no jurisdiction to pass such an order as he lacks jurisdiction of switching over of the property and subsequent conversion. The Collector has tried to play with the sentiments of persons whose relatives have been buried in the said Kabrastan. That the respondent has vested the land in Government with an ulterior motive of allotting the said land to the builder lobby in coming years. In view of above, he has prayed to allow present petition.

5. Per contra, learned AGP, Mr. Kanara for the respondent-State has submitted that the impugned order is of 2006, while present petition is fled in 2009, therefore, there is delay of three years in fling present petition. He also submitted that Circle Officer, Champaner had made spot inspection and it was found that there are five graves (Kabars), which are 20 years old and rest of the land is lying vacant. He submitted that it appears that the land is lying idle and, therefore, looking to the future need for development of Pavagadh, the land in question was vested in Government. In this regard, he has also relied upon page 33, which is a Government Gazette with regard to publication of transaction of The Champaner Pavagadh Archaeological Park World Heritage Area Management Authority Act, 2006. He has also relied upon page 48, which is a letter dated 23.4.2006 for Denotifying the land in question for the purpose of development of the area. He has also relied upon further reply fled in compliance of order dated 20.2.2014 and submitted that there are only two muslim families in Champaner village. It is also submitted by him that no land is available which can be allotted to the petitioner-Trust for the purpose of graveyard as most of the land is of the ownership of the Forest Department. In view of these, he has prayed to dismiss present petition.

6. Considering the submissions made on behalf of the parties and the materials placed on record. From the document at Annexure-D, it is clear that the name of the trust was recorded in the revenue record in the year 1996. Even the entries of village form No. 7-12 show that the land in question is "kabrastan".

6.1. In the case of Syed Mohd. Salie Labbai (D), by Lrs. (Supra) it is held as under:-

"We are of the view that once a Kabarstan has been held to be a public graveyard then it vests in the public and constitutes a wakf and it cannot be divested by non-user but will always continue to be so whether it is used or not.

The following rules in order to determine whether a graveyard is a public or a private one may be stated:

(1) that even though there may be no direct evidence of dedication to the public, it may be presumed to be a public graveyard by immemorial user i.e. where corpses of the members of the Mahomedan community have been buried in a particular graveyard for a large number of years without any objection from the owner. The fact that the owner permits such burials will not make any difference at all;

(2) that if the grave-yard is a private a family grave-yard then it should contain the graves of only the founder, the members of his family or his descendants and no others. Once even in a family grave-yard members of the public are allowed to bury their dead, the private graveyard sheds its character and becomes a public grave-yard;

(3) that in order to prove that a graveyard is public by dedication it must be shown by multiplying instances of the character, nature and extent of the burials from time to time. In other words, there should be evidence to show that a large number of members of the Mahomedan community had buried their corpses from time to time in the graveyard. Once this is proved, the Court will presume that the graveyard is a public one; and

(4) that where a burial ground is mentioned as a public graveyard in either a revenue or historical papers that would be a conclusive proof to show the public character of the graveyard.

Applying these principles to the facts of the present case, it is clear that there are graves and even in the revenue records, it is shown as "kabrastan". Considering all these aspects, present petition is allowed."

6.2. As held in aforesaid case, the certificate issued by local Panchayat establishes the fact that even today also use of the land in question is for the purpose of Kabrastan. Not only that the respondents have also admitted in their affidavit in reply that the land in question is used for the purpose of graveyard. It also appears that the respondent did not give opportunity of hearing to the trust before passing the impugned order. It also found that the observations made by the authority are neither relevant nor rational. It is observed by the authority that there are less graves in the graveyard inspite of observing that only two Muslim families are residing in the nearby vicinity. One cannot expect that graveyard should be full always and if there are less graves, it cannot be said to be a ground to vest the land in Government.

7. Considering all these aspects, present petition is allowed. Order dated 16.9.2006 passed by Collector, Panchmahal-Godhra, Annexure-F to present petition, is quashed and set aside. Rule is made absolute accordingly. No order as to costs. Direct service is permitted.

T.N. Government restructures panels for monitoring encroachments [10.01.2022]

Various committees that were constituted in the past would now be superseded by the three-level panel.

The Tamil Nadu Government on Tuesday constituted a State-level steering committee, and district-level and divisional-level monitoring committees for effective reporting and monitoring of development activities for identifying and evicting encroachments in waterbodies and other government lands. The three-level panels would supersede all existing committees, constituted at various points in time.

Hitherto, several committees in taluk-level, divisional, district and State-level were in place to protect government lands from encroachments in compliance with the orders of the courts that monitor the action taken for eviction of such encroachments. “A single point reporting or monitoring system is necessary at each level for effective initiatives towards protection,” a G.O. issued in this regard said.

The Chief Secretary is the ex-officio chairperson of the State-level steering committee. Ex-officio members in the panel are Secretaries of Revenue & Disaster Management, Municipal Administration and Water Supply, Water Resources, Highways & Minor Ports, Rural Development and Panchayat Raj, Home, Prohibition and Excise and Housing and Urban Development Departments, Director-General of Police.

Director of Rural Development and Panchayat Raj, Commissioner of Greater Chennai Corporation, Director of Municipal Administration, Engineer-in-Chief of the Water Resources Department, Director-General-Highways, Managing Director of Tamil Nadu Urban Habitat Development Board, Director of Survey and Settlement are the other members of the panel. Commissioner of Land Administration would be the convenor of the State-level committee.

The State-level committee shall monitor and review the overall progress in the eviction of encroachments and compliance of court orders with respect to waterbodies and other highly objectionable porambokes. The committee would convene once a month and issues would be taken up for discussion along with the All Secretaries’ Meeting. Collectors and the Revenue Divisional Officers would be the chairperson of the district-level and division-level committees. “In the meantime, Taluk Tahsildar and other field officers of the line departments concerned (like WRD, Highways etc), should initiate eviction process after identifying encroachments in objectionable government lands. The relevant Acts and the processes prescribed under these Acts should be followed while evicting ,” it said. At least on five instances, committees were constituted in the past, over identifying and evicting encroachments in waterbodies and other government lands. Three redressal committees –Taluk Committee, Divisional-level Appellate Committee and District-level review committee were constituted in line with the orders of the Madras High Court in 2014. In the light of the observations made by Madras High Court of Madras, a G.O. was amended to include officials of Water Resources and PWD. In 2021, the Collectors were instructed to formulate a local team with concerned Assistant Engineer/Assistant Executive Engineer, Village Administrative Officer (VAO), Panchayat President, local NGOs and SHG members. The three-level committee constituted on February 8 would supersede all these committees.

Chhattisgarh High Court: High time that state wakes up and takes strong decisions against encroachments [31.01.2022]

HIGH COURT OF CHHATTISGARH AT BILASPUR 

 Writ Petition (C) No. 542 of 2022 

1. Dineshwar Prasad Mehta S/o Late Shri Jailal Mehta Aged About 58 Years R/o Village Balgikhar, Ward No. 15, Vidhyalaya Gali, Police Station Banki Mogra, Tahsil Darri, District Korba Chhattisgarh. 

 ---Petitioner(s) 

Versus 

1. State of Chhattisgarh Through Its Secretary, Department of Revenue Mahanadi Bhawan, Naya Raipur , District Raipur Chhattisgarh. 

2. State of Chhattisgarh Through Its Secretary, Urban Administration and Development Mahanadi Bhawan, Naya Raipur, District Raipur, CG. 

3. Collector Korba District Korba Chhattisgarh. 

4. Municipal Corporation Korba Through Its Commissioner District Korba,CG. 

5. Sanjay Pandey S/o Shri Babulal Pandey Aged About 55 Years 

6. Praveen Pandey S/o Shri Babulal Pandey Aged About 50 Years Respondents No.5 & 6 are R/o House No. 37, M.I.G. 1, M.P. Nagar Extension Kusabadi, Tehsil and District Korba Chhattisgarh.

---Respondents 

For Petitioner : Shri Sarfaraz Khan, Advocate. 

For State : Ms. Samiksha Gupta, Panel Lawyer. 

For Respondent 4 : Shri Pankaj Agrawal, Advocate. 

Hon'ble Shri Justice P. Sam Koshy 

Order on Board 

31.01.2022

1. The grievance of the petitioner in the present writ petition is the alleged illegal encroachment and subsequent illegal plotting being done on government land that situates at Khasra No.44/4 and 44/8 at village Lata, Tehsil Katghora, District Korba.

2. The counsel for the petitioner submits that on a complaint made by the petitioner, the respondents have already initiated action and an order was passed as early as on 10.09.2018, however, till date there has been no further action initiated by the respondents in terms of the order dated 10.09.2018.

3. Today when the matter is taken up for hearing, the counsel appearing for the Municipal Corporation submits that the Municipal Corporation shall ensure that appropriate proceedings and steps are taken in accordance with law after hearing all the parties within a stipulated period at the earliest.

4. The same view has been expressed by the State counsel as well.

5. Of late, this court has been receiving various writ petitions of different areas with similar, if not identical, relief sought for i.e. the government land in the neighboring of the petitioner's getting encroached upon by illegal means and thereafter constructions are being carried out on government land and thereafter those government lands are being plotted and sold to private agencies thereby further encroachments are being permitted.

6. The Supreme Court in case of Jagpal Singh & Others Vs. State of Punjab and Others, 2011 (11) SCC 396 has already come down heavily upon the government agencies particularly so far as illegal encroachment is concerned, wherein in paragraph 23 the Supreme Court in a very categorical terms have issued the following directions: "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."

7. Based upon the said directives issued by the Supreme Court in the said judgment, the State of Chhattisgarh as well has issued certain guidelines on this issue. However, it seems that the judgment and directions of Supreme Court and the guidelines framed by the State of Chhattisgarh are all being given a go bye by the illegal encroachers who seem to be in connivance with the government officials, or else they could not have been permitted to firstly encroach upon the government land and secondly raise huge constructions on the government land.

8. The guidelines issued by the State Govt. in this regard is also enclosed along with the writ petition as Annexure P/5 dated 13.03.2011 wherein a mechanism itself has been envisaged to be resorted to in the given factual backdrop.

9. It is high time that the respondents wake up from their slumber and take an appropriate strong decisions in order to protect the government land from being misused by such unscrupulous persons.

10. Given the fact that there is already a judgment of Supreme Court and which has also been accepted by the State of Chhattisgarh by the issuance of the guidelines dated 13.03.2011, it goes without saying that the respondents are bound to take appropriate steps and actions in accordance with directives of the Supreme Court as also the guidelines of the State Government.

11. The writ petition therefore at this juncture stands disposed of directing the respondents No.3&4 to take all necessary steps and actions so far as illegal encroachment upon government lands are concerned, more particularly the order of the respondent No.4 dated 10.09.2018 in respect of the illegal encroachment in Khasra No.44/4 and 44/8 at village Lata, Tehsil Katghora, District Korba.

12. It is expected that the respondents shall initiate appropriate action strictly in accordance with law immediately within a period of 45 days and the entire proceedings shall be concluded within an outer limit of six months from the date of receipt of copy of this order.

Rajasthan High Court: Pasture lands cannot be taken away on the pretext of sale, purchase or patta [24.01.2022]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR 

S.B. Civil Writ Petition No. 8423/2008 

Smt. Radha Devi                                                                             ----Petitioner 

Versus 

State And Ors.                                                                             ----Respondent 

S.B. Civil Writ Petition No. 8511/2008 

Smt. Sunita Bai                                                                                ----Petitioner 

Versus 

State And Ors                                                                               ----Respondent 

S.B. Civil Writ Petition No. 8512/2008 

Smt. Lalita                                                                                       ----Petitioner 

Versus 

State And Ors                                                                               ----Respondent 

S.B. Civil Writ Petition No. 8519/2008 

Shiv Narayan                                                                                   ----Petitioner 

Versus 

State And Ors                                                                               ----Respondent 

S.B. Civil Writ Petition No. 8542/2008 

Smt. Geeta Bai                                                                                ----Petitioner 

Versus 

State And Ors                                                                              ----Respondent 

S.B. Civil Writ Petition No. 8543/2008 

Smt. Sushila Bai                                                                            ----Petitioner 

Versus 

State And Ors                                                                             ----Respondent 

(D.B. SAW/1100/2008 has been filed in this matter. Please refer the same for further orders) 

For Petitioner(s) : Mr. Chaitanya Gahlot on VC. 

For Respondent(s) : Mr. K.K. Bissa on VC.

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI 

Judgment 

24/01/2022

1. In wake of instant surge in COVID-19 cases and spread of its highly infectious Omicron variant, lawyers have been advised to refrain from coming to the Courts.

2. Learned counsel for the petitioners, at the outset, has drawn the attention of this Court towards the order dated 23.10.2008 passed by this Hon'ble Court, individually in all these petitions, whereby the petitions were dismissed; the operative portion of the said order dated 23.10.2008 reads as under:

"In my opinion, if no record was maintained with regard to the auction proceedings by the Panchayat, then it can be said that whole proceedings were illegal, therefore, the finding given by the District Collector in the order dated 12.08.2008 does not require interference. Accordingly, the writ petition is dismissed."

However, learned counsel furnished before this Court the order dated 02.05.2018 passed by a Division Bench of this Hon'ble Court in S.A.W. Nos.1041/2008, 1044/2008, 1042/2008, 1139/2008, 1043/2008 & 1100/2008 arising out of the present writ petitions i.e. S.B. C. W.P. Nos.8423/2008, 8511/2008, 8512/2008, 8519/2008, 8542/2008 & 8543/2008, respectively. Learned counsel further submits that vide the said order, the Hon'ble Division Bench, while disposing of the aforementioned appeals and restoring the present petitions, issued a direction for deciding the same afresh on merits.

The operative portion of the said order dated 02.05.2018 reads as under:

"11. In our opinion the learned Single Judge ought to have looked into the material placed by the writ petitioners before the District Collector Chittorgarh who was the Revisional Authority and keeping in view that the revision was filed after 24 years the effect of the time period qua the Panchayat was not being able to produce the relevant record and evidence had to be weighted.

12. The appeals are disposed of setting aside the impugned order dated 23.10.2008. The writ petitions filed by the appellant-writ petitioners are restored, to be decided by the learned Single Judge afresh on merits."

3. Thereafter, learned counsel for the petitioners submits that in SBCWP Nos.8511/2008, 8512/2008, 8519/2008 & 8542/2008, this Hon'ble Court had passed the following interim order on 12.07.2018 (SBCWP No.8511/2008):

"The matter has been listed before this court pursuant to directions given by Hon'ble Division Bench of this Court vide order dated 02.05.2018. The Hon'ble Division Bench has directed the court to reconsider the controversy in detail and decide the writ petitions on merits.

Let notices be issued to the respondents. Mr. Manish Patel accepts notice on behalf of all the respondents and prays for time to complete instructions. Thus, notice need not be issued. In the meantime, status quo shall be maintained regarding disputed land in question. Henceforth the name of Mr. Manish Patel be shown in the cause list.

List after six weeks.

Connect with S.B. Civil Writ Petition Nos.8512/2008, 8519/2008 & 8542/2008."

Learned counsel thus, prays that the aforequoted interim order may also be passed in the remaining petitions i.e. SBCWP No.8423/2008 & 8543/2008.

However, looking to the fact that the present petitions pertained to the year 2008, this Court instead of making any interim adjudication, as prayed by learned counsel for the petitioner, deems it appropriate to decide the matter finally.

4. In the aforesaid backdrop and the fact that since all these petitions involve a common controversy, therefore, with the consent of learned counsel for the parties, the same have been heard together and are being decided by this common judgment.

5. For the purpose of the present adjudication, the prayer clauses and the facts are being taken from SBCWP No.8423/2008, while treating the same as lead case.

6. These writ petitions have been preferred claiming, in sum and substance, the following reliefs:

"I. by an appropriate writ, order or direction the order dated 12.8.2008 (Annex.9) passed by the respondent No.2 in Revision-Panchayat No.15/2007 (All Villagers Vs. Jagdish & Anr.) may kindly be quashed and set aside declaring it to be illegal qua the petitioner; II. by an appropriate writ, order or direction the respondents may kindly be restrained to not to interfere in the sole title, peaceful possession over the property hold by the petitioner in view of sale-deed dated 26.2.1983 (Annex.1)."

7. For the purpose of brevity, this Court observes the facts in brief which are that in 1983, the concerned Gram Panchayat planned and prepared a residential scheme for the development of the village land adjacent to the township of Chittorgarh, and that in doing so an auction was made and a subsequent sale deed was executed in the favour of the present petitioners by respondent no. 8, the concerned Gram Panchayat. However, the said land in question was sanctioned to be entered as 'abadi land' instead of 'charaga land' through the requisite procedural formalities, before the sale deed was executed. However, the present petitioners continued to enjoy the possession of land, however, subsequently when a new sarpanch was elected, the gram panchayat sought to rectify the erroneous allotment of land to the present petitioners. The petitioner, after availing of the legal recourse, under the concerned provisions of the Rajasthan Panchayati Raj Act of 1994 and the Rajasthan Panchayat Rules of 1961, comes before this Court seeking quashing of impugned order issued by respondent no. 2 in favour of respondent no. 8.

8. Heard learned counsel for both parties.

9. In support of his contention that the limitation period to challenge allotment of the said land in question was over, the learned counsel for the petitioner cites at the bar, the following judgments, rendered by this Court in Murali and Anr. Vs. Addl. Collector, Nagaur and Ors. D.B. Civil Special Appeal No. 522 of 2002 and Panna Lal and Anr. Vs. Smt. Sushila Devi and Ors. D.B. Civil Special Appeal (W) No. 108 of 2006.

10. Learned counsel for the respondent cites the judgment of Chiman Lal Vs. State of Rajasthan and Ors. S.B. Civil Writ Petition No. 1688 of 1983 in stating that the period of limitation, when not expressly determined by the concerned statute, has to be reasonably fixed keeping in view the facts and circumstances of each case.

11. This Court observes, as is evident from the order, dated 12.08.2008, passed by the concerned District Collector, Chittorgarh, that the land in question was only entered into as 'abadi land' on 04.06.1986 while the auction was conducted on 23.09.1981, the land was still recorded as'charaga / gauchar land'. Further, no proper documents viz. sale deed, receipt book, cash book, of the auction proceedings are available with the concerned Gram Panchayat.

12. Further, the patta issued through the procedure undertaken by way of auction, through which the petitioner claims to have right to land emanates, is also not traceable. And, the learned counsel for the petitioner, although places reliance on the sale deed document, at Annexure 1 of the record, this Court observes that this document was created on 26.2.1983, while the auction proceedings were carried out two years prior, in 1981.

13. It is therefore clear as crystal, that the land in question on the purported date of sale was in fact 'charaga / gauchar land' and record reflects, as this Court has observed above, that the land in question got converted into 'abadi land' only much after, on 05.06.1986 i.e. after a period of about 5 years from the date on which the auction proceedings were carried out, three years from the purported sale deed.

14. This Court also observes that it is also not the case of the petitioner that land in question was converted into 'abadi land' from 'charaga land' before the auction proceedings were carried out or the sale deed entered into.

15. With respect to the objection raised by the learned counsel for the petitioner that the period of limitation to challenge the allotment of the land in question has long passed, this Court does not find merit in this submission so made.

16. In arriving at this conclusion, this Court observes the succinct reasoning laid down in Chiman Lal (supra) by the Hon'ble Special Bench of this Hon'ble Court, wherein it was observed that when a statute omits to fix any period of limitation, then the power has to be exercised within reasonable time depending on facts of the given case, though in cases of fraud, misrepresentation, collusion, lack of jurisdiction, violation of statutory provisions and orders being void or against public interest, power can be exercised at any time.

17. This Court also observes the ratio decidendi laid down by the Hon'ble Division Bench of this Court in Gulab Kothari Vs. State of Rajasthan and Ors. D.B. Civil Writ Petition No.1554/2004 at Paras. 197 - 199:

"197. We are of the considered opinion that keeping in view the mandate of the provisions of the Act of 1955 and the Rules made thereunder, the preservation and development of the pasture land by the State Authorities is the rule and diversion of user thereof is an exception and therefore, the power conferred upon the Collector under Rule 7 of the Rules of 1955, to change the classification of the pasture land should be exercised sparingly only in the larger public interest and not so as to subserve the interest of any individual.

198. At this stage, it is to be noticed that in the Writ Petition No.5907/08, the petitioner has given the details of some of the orders passed by the JDA converting the land set apart as pasture land in the rural areas of Jaipur Region but there is no details available in respect of the rural areas falling within the Jodhpur Region, Ajmer Region and various districts of the State and therefore, before further dilation of the issue, it would be appropriate that the directions are issued to the State to furnish the complete details regarding the availability of the pasture land in various districts of the State of Rajasthan as on the date of commencement of the Act of 1955, the diversion of the user of the pasture land permitted after the commencement of the Act of 1955, and the land set apart as pasture land after the commencement of the Act of 1955. The State should also furnish the district-wise details of unauthorised occupation over the pasture land.

199. But in any case, pending consideration of the issue, as mandated by the Hon'ble Supreme Court in Jagpal Singh's case (supra), the indiscriminate diversion of the pasture land for other purposes needs to be checked and any unauthorised occupation over the pasture land by unscrupulous persons needs to be dealt with strictly." (emphasis added)"

18. In Abdul Rahman Vs. State of Rajasthan D.B. Civil Writ Petition No. 1536/2003 judgment dated 02.08.2004, on an issue regarding encroachment on public utility land, the Hon'ble Division Bench of this Court observed that encroachment of the said lands, even by the Gram Panchayat, through the Sarpanch for the construction of a school, and the subsequent submission of a proposal to convert the said land into 'abadi land', on the ground that it may be utilized to construct a school as there were already a number of government buildings viz. anganwadi, a health centre, G.L.R. building, etc. and a number of residential homes constructed on the said lands, would not be in the larger public interest of preserving the land in question on the grounds that through the 42nd Amendment to the Constitution of India, it was the duty of the State, under Article 48A and Article 51A to protect the natural environment; and that under Article 21, every person has the right to a safe and healthy environment.

19. This Court therefore, observes that under no circumstances it may be permitted that the 'charaga/gauchar' land i.e. pasture land be taken away by someone on the pretext of sale, purchase or through a patta.

20. This Court, after a perusal of the record, and hearing learned counsel for both parties, and observing the judgments rendered in the aforementioned cases finds that the concerned authority rightly exercised its power in passing the impugned order, and that the issue in the present case warrants the exercise of the power of revision of the concerned authority.

21. In light of the aforesaid observations, the present petitions are dismissed. All pending applications stand disposed of.

(DR.PUSHPENDRA SINGH BHATI),J.

Punjab & Haryana HC in Gurmukh Singh vs. State of Punjab [09.09.2021]

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

CWP No. 17706 of 2021

Date of Decision: 09.09.2021 

Gurmukh Singh ...Petitioner 

Versus 

State of Punjab and others ... Respondents 

CORAM:- HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH 

                  HON'BLE MR. JUSTICE ASHOK KUMAR VERMA 

Present: Mr. Sahil Soi, Advocate for the petitioner. 

ASHOK KUMAR VERMA, J. 

1. This writ petition has been filed for quashing of the order dated 25.06.2021 (Annexure P-5) passed by the Director, Rural Development and Panchayat Department (Exercising the Power of Commissioner), SAS Nagar Mohali, Punjab at Mohali and the order dated 17.10.2017 (Annexure P-3) passed by the District Development and Panchayat Officer-cum-Collector, Jalandhar. 

2. Brief facts leading to the filing of this petition are that Gram Panchayat, Maheru filed a case before the District Development and Panchayat Officer-cum-Collector, Jalandhar against the petitioner and six others alleging that the petitioner has illegally encroached the Gram Panchayat land (26 Kanal), Khewat No.285, Khatauni No.359, Khasra No.19//16/4 (0-14), 17/3 (2-0), 22/2 (3-13), 23 (7-4), 24/1 (6-4), 22//3/1 (5-19), 4/1 (0-10) as per Jamabandi 2005-06, Hadbast No.55, situated in Village Maheru, Tehsil Nakodar, District Jalandhar. The land in dispute is common property under the control of Gram Panchayat, Maheru and the income from the said land was being used for the development and progress of the village. The petitioner got the land in dispute on lease in the name of his relatives and did not give back the same to the Gram Panchayat, Maheru. After hearing the Gram Panchayat and considering the revenue record, the Collector came to the conclusion that there is illegal encroachment on the land in question and as such he passed eviction order dated 17.10.2017 (Annexure P-3) directing the petitioner to immediately vacate the land in dispute and handover the vacant possession to the Gram Panchayat. Aggrieved against the aforesaid order the petitioner filed appeal before the Director, Rural Development and Panchayats, Punjab at Mohali which was also dismissed vide order dated 25.06.2021 (Annexure P-5). Thus, the present petition has been filed challenging the aforesaid orders.

3. Learned counsel for the petitioner, inter alia, submits that the impugned orders are based upon conjectures and surmises and are perverse to the evidence available on record. Neither the land in dispute was used for common purpose nor its income was ever used for development of village and it was never leased to the petitioner or his relatives as alleged by the Gram Panchayat. Prior to 1964 and during consolidation, the land in dispute was shown as ‘Shamlat Patti Udhowal’ in the ownership column and later on vide mutation No.2250, the said entry was changed wrongly from ‘Shamlat Patti Udhowal’ to ‘Panchayat Deh’ on the basis of a letter dated 24.06.1964. As per law no mutation can be sanctioned on the basis of a letter or notification. The said entry is wrong, illegal and void which was changed without hearing anyone. The land in dispute which was earlier in the name of private persons had been transferred in the name of the petitioner and other performa respondents vide sale deed 18.05.1979 and the land in dispute does not come under the definition of ‘Shamlat Deh’. Learned counsel also submits that the revenue authorities have not taken into consideration these facts. Therefore, the impugned orders being illegal may be quashed.

4. We have anxiously considered the submissions of the learned counsel for the petitioner and gone through the paper-book. 

5. We find no substance in the submissions of the learned counsel for the petitioner. The submissions and the assertions of the petitioner are bald, baseless and imaginary and have no leg to stand. There is no evidence on record to show that the disputed land belongs to the petitioner. On the other hand, the Collector examined the issue thoroughly in its order dated 17.10.2017. After appreciating the evidence the Collector arrived at the conclusion that as per Jamabandi for the year 2005-06, in the column of ownership ‘Panchayat Deh’ is mentioned, the petitioner was is in illegal possession of the land in dispute and the same has remained in control of Gram Panchayat. The Collector rightly ordered eviction of the petitioner from the land in dispute vide impugned order dated 17.10.2017, which was also upheld by the Commissioner vide impugned order dated 25.06.2021 passed in the appeal filed by the petitioner observing that there is nothing on record to show that the petitioner is owner of the land in dispute. In the absence of any cogent evidence and material on record in favour of the petitioner, we find no reason to interfere with the findings of fact recorded by the revenue authorities in their comprehensive and speaking orders. 

“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. Regularising such illegalities must not be permitted because it is Gram Sabha land which must be kept for the common use of the villagers of the village. 

XXX XXX XXX 

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/unauthorised occupants of the 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 regularising the illegal possession. Regularisation should only be permitted in exceptional cases e.g. where lease has been granted under some government notification to landless labourers or members of the Scheduled Castes/Scheduled Tribes, or where there is already a school, dispensary or other public utility on the land.”

The aforesaid propositions have been reiterated by Hon’ble Supreme Court in Joginder and another Vs. State of Haryana and others, 2021 (2) R.C.R (Civil) 109.

7. We are of the considered opinion that the aforesaid ratio of law laid down by the Supreme Court is fully applicable to the case of the petitioner. 

8. In view of the above, we find no merit in the present petition, which is accordingly dismissed.

             (ASHOK KUMAR VERMA)                         (AUGUSTINE GEORGE MASIH) 

                            JUDGE                                                                 JUDGE

Eviction of illegal occupants from panchayati land remains a challenge in Haryana [01.02.2022]

Facing a challenge to evict squatter from thousands of acres of panchayati and shamlat land in almost all districts of Haryana, the state government is now exploring the possibility of permitting continuance of the occupation of gram panchayati land to people who are in unauthorised possession of the land. 

With panchayat polls due in state, the development assumes significance as the move may help the ruling BJP-JJP alliance to appease rural voters. Even as the officials of the panchayats and development department are not ready to talk over the issue but the matter came to light as the state government has filed a reply with the Punjab and Haryana high court that a policy is being framed for exploring the possibility of permitting continuance of the occupation of the panchayati land by the persons who are in unauthorised or illegal possession.

“There are large number of encroachments that have been effected where construction has been done and old structures are existing. The state, therefore wants six weeks’ time to finalise the said policy and till a decision is taken in this regard, the petitioners will not be disposed,” mentions the January 19 order of the Punjab and Haryana high court in a case related to illegal encroachment on panchayati land for which March 16 has been fixed as the next date of hearing.

As per the report filed by the state government with the court in a case of Dharambir Sharma versus State of Haryana and others, total 11,669 eviction petitions involving 9,855 acre are pending with the assistant collector first grade by December 2018. But by filing of the affidavit in September, 2019, possession of land measuring 835 acre have been delivered to the gram panchayats concerned, the government claimed.

In 3,583 cases, around 3,728 acre panchayati and shamlat land, including residential plots, were occupied despite eviction orders being issued. Maximum 558 acre panchayati and shamlat land were occupied illegally in Hisar district, followed by 543 acre in Panchkula, 500 acre in Yamunanagar, 365 acre in Ambala, 303 acre in Kurukshetra, and 295 acre in Jhajjar after the eviction orders were passed, till September 2019.

The government said the possession of 2,069 acre land has been delivered to gram panchayats from 2015 to 2019 in 1,003 cases.

Later in January 2021, in the same case, the state government told the HC that from October to December 2020, in 205 cases, possession of land measuring 300 acre has been delivered to the gram panchayats concerned and criminal proceedings in 40 cases have been initiated against people who were found in unauthorised occupation of the panchayati land.

Ramesh Chander Bidhan, director general, development and panchayats, Haryana denied having any information regarding formation of the policy to give possession of panchayati land to illegal occupants saying, “I am not aware about any such policy being framed as I am on election duty in Uttar Pradesh.”

On delay in eviction of illegal occupants from panchayati lands, he said eviction of illegal occupants is an ongoing process and in some cases, it got delayed as the eviction is carried out only after the court orders. The possession is taken after eviction orders are passed but the process of execution starts only after the eviction orders are issued.

Link: https://www.hindustantimes.com/cities/chandigarh-news/eviction-of-illegal-occupants-from-panchayati-land-remains-a-challenge-in-haryana-101643658634713.html