IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
CWP No. 3097 of 2015
Decided On: 06.07.2015
Kavita Pant and Ors.
Vs.
Union of India and Ors.
Hon'ble Judges/Coram:
Mansoor Ahmad Mir, C.J. and Tarlok Singh Chauhan, J.
Counsels:
For Appellant/Petitioner/Plaintiff: G.D. Verma, Senior Advocate and B.C. Verma, Advocate
For Respondents/Defendant: Adarsh Sharma, Advocate vice Ashok Sharma, Assistant Solicitor General of India
JUDGMENT
Tarlok Singh Chauhan, J.
1. This writ petition has been filed with the following prayer:--
"That the eviction proceedings as started by the Respondents pursuant to notice Annexure P-2, may kindly be ordered to be set aside and quashed and since orders under challenge vide Annexure P-4 and Annexure P-8 passed by the Respondent No. 2 and Additional District Judge, Sirmour, in appeal, respectively, may kindly be set aside and quashed."
2. The brief facts giving rise to the present case are that eviction proceedings under the Public Premises Act were initiated against the petitioners which culminated into an eviction order. This order was further assailed before the learned Appellate Authority, who too dismissed the same vide judgment dated 22.06.2015.
3. The subject-matter of dispute is the land comprised in Khasra Nos. 665 to 670, measuring 0-02-06 hectares, situated in revenue estate Chhawani, Nahan, District Sirmaur. The land in dispute was recorded in the ownership of the Central Government, who instituted proceedings for eviction as it was the petitioners, who were in possession of the same.
4. The petitioners contested these proceedings by claiming that the notice served upon them was malafide and without jurisdiction because in the Civil Suit No. 45/1 of 2012 instituted by them, their possession for more than 60 years over the suit land had been established and the suit had been partly decreed. It was further averred that the suit land had been given to the predecessor of the petitioners by the erstwhile ruler of Sirmaur State and their possession over the suit land was from three generations. It was also averred that they had constructed their houses by investing huge amount.
5. The Estate Officer found the possession of the petitioners to be unauthorized and accordingly ordered their eviction which order, as observed earlier, was affirmed by the Appellate Authority.
We have heard Shri G.D. Verma, Senior Advocate assisted by Shri B.C. Verma, Advocate and have gone through the records of the case.
6. At the outset, it may be observed that the Public Premises Act has been enacted with a view to provide for eviction of unauthorized occupants from public premises. In the Statement of Objects and Reasons for this enactment, reference has been made to the judicial decisions whereby the 1958 Act was declared as unconstitutional and it has been mentioned:--
"63........The court decisions, referred to above, have created serious difficulties for the Government inasmuch as the proceedings taken by the various Estate Officers appointed under the Act either for the eviction of persons who are in unauthorised occupation of public premises or for the recovery of rent or damages from such persons stand null and void..... It has become impossible for Government to take expeditious action even in flagrant cases of unauthorised occupation of public premises and recovery of rent or damages for such unauthorised occupation. It is, therefore, considered imperative to restore a speedy machinery for the eviction of persons who are in unauthorised occupation of public premises keeping in view at the same time the necessity of complying with the provision of the Constitution and the judicial pronouncements, referred to above."
7. The Constitution Bench of the Hon'ble Supreme Court after considering the aforesaid Statement of Objects and Reasons in Ashoka Marketing Ltd. and another versus Punjab National Bank and others MANU/SC/0198/1991 : (1990) 4 SCC 406 held that the Public Premises Act had been enacted to deal with the mischief of rampant unauthorised occupation of public premises by providing a speedy machinery for the eviction of persons in unauthorised occupation. It was held:--
"This shows that the Public Premises Act has been enacted to deal with the mischief of rampant unauthorised occupation of public premises by providing a speedy machinery for the eviction of persons in unauthorised occupation. In order to secure this object the said Act prescribes the time period for the various steps which are required to be taken for securing eviction of the persons in unauthorised occupation. The object underlying the enactment is to safeguard public interest by making available for public use premises belonging to Central Government, Companies in which the Central Government has substantial interest, Corporations owned or controlled by the Central Government and certain autonomous bodies and to prevent misuse of such premises."
8. Earlier to this, the Hon'ble Supreme Court compared the Public Premises Act with the general law and in para 55 held:--
"55.......The Public premises Act makes provision for a speedy machinery to secure eviction of unauthorised occupants from public premises. As opposed to the general law which provides for filing of a regular suit for recovery of possession of property in a competent Court and for trial of such a suit in accordance with the procedure laid down in the Code of Civil procedure, the Public Premises Act confers the power to pass an order or eviction of an unauthorised occupant in a public premises on a designated officer and prescribes the procedure to be followed by the said officer before passing such an order. Therefore, the Public Premises Act is also a special statute relating to eviction of unauthorised occupants from public premises...."
9. These observations of the Hon'ble Supreme Court were reiterated by the Hon'ble Supreme Court in recent decision in Suhas H. Pophale versus Oriental Insurance Company Limited and its Estate Officer MANU/SC/0093/2014 : (2014) 4 SCC 657.
10. Shri G.D. Verma, learned counsel for the petitioners has vehemently argued that even if it is assumed that the petitioners are in unauthorized possession, even then, there is nothing on record to prove or even remotely suggest that it is the respondents, who are owners of the land. He further contends that once the Civil Court had found the petitioners to be in possession of the suit land for over a period of 60 years, they could not have been ordered to be evicted.
11. Indisputably, the decree passed by the Civil Court in the civil suit inter se the parties has attained finality and reads thus:--
"It is held that, although, the plaintiffs are in settled possession of the suit land, but their possession has not matured into title. The plaintiffs are held not entitled to the declaration to the effect that they have become owners of the suit land by way of adverse possession. By way of injunction, the defendants are permanently restrained from dispossessing the plaintiffs from the suit land comprised in old Khasra No. 861, 862, 863, 864 and 865 and new Khasra Nos. 665, 666, 667, 668, 669 and 670, measuring 0-2-06 Hectares, situated in revenue Estate Chhawani Shamsherpur, Ward No. 12, Nahan, District Sirmaur, H.P. forcefully and without following the process of law."
12. It is evident from the bare perusal of the decree that the petitioners themselves attorned and acknowledged the title of the respondents and the only plea raised by them was that they were in settled possession of the land for 60 years.
13. It is not in dispute that the decree passed by the Civil Court has attained finality and the only protection afforded to the petitioners was that they would not be dispossessed forcibly and without following the process of law.
14. The decree passed by the Civil Court was binding not only on the parties, but also the authorities constituted under the Public Premises Act. (Refer: State of U.P. and another versus Zia Khan (1998) 8 SCC 483).
15. It has to be remembered that whenever an encroacher, illegal occupant or land grabber of the public property raises the plea that he has perfected title by adverse possession, the Court is bound to act with greatest seriousness, care and circumspection. Any laxity in this regard may result in destruction of right/title of the State to immovable property and give upper hand to the encroacher, unauthorized occupant or land grabber.
16. State is ordinarily rated as virtuous litigant and it goes without saying that the property recorded in government khata is the property of the public at large and, therefore, cannot be jeopardized by an individual or handful of people. The Court while dealing with a dispute involving public property should be at guard against any fraud, collusion and concoction militating against the fair play of justice jeopardizing the interest of the State.
17. Coming down heavily on the land grabbers, the Hon'ble Supreme Court in Mandal Revenue Officer versus Goundla Venkaiah and another (2010) 2 SCC 461 held as under:--
"47. In this context, it is necessary to remember that it is well-nigh impossible for the State and its instrumentalities including the local authorities to keep every day vigilance/watch over vast tracts of open land owned by them or of which they are the public trustees. No amount of vigil can stop encroachments and unauthorised occupation of public land by unscrupulous elements, who act like vultures to grab such land, raise illegal constructions and, at times, succeeded in manipulating the State apparatus for getting their occupation/possession and construction regularized. It is our considered view that where an encroacher, illegal occupant or land grabber of public property raises a plea that he has perfected title by adverse possession, the Court is duty bound to act with greater seriousness, care and circumspection. Any laxity in this regard may result in destruction of right/title of the State to immovable property and give upper hand to the encroachers, unauthorised occupants or land grabbers.
48. In State of Rajasthan v. Harphool Singh (2000) 5 SCC 652, this Court considered the question whether the respondents had acquired title by adverse possession over the suit land situated at Nohar-Bhadra Road at Nohar within the State of Rajasthan. The suit filed by the respondent against his threatened dispossession was decreed by the trial Court with the finding that he had acquired title by adverse possession. The first and second appeals preferred by the State Government were dismissed by the lower appellate Court and the High Court respectively. This Court reversed the judgments and decrees of the courts below as also of the High Court and held that the plaintiff-respondent could not substantiate his claim of perfection of title by adverse possession. Some of the observations made on the issue of acquisition of title by adverse possession which have bearing on this case are extracted below: (SCC p.660, para 12)
"12. So far as the question of perfection of title by adverse possession and that too in respect of public property is concerned, the question requires to be considered more seriously and effectively for the reason that it ultimately involves destruction of right/title of the State to immovable property and conferring upon a third-party encroacher title where he had none. The decision in P. Lakshmi Reddy v. L. Lakshmi Reddy AIR 1957 SC 314 adverted to the ordinary classical requirement -- that it should be nec vi, nec clam, nec precario -- that is the possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor. It was also observed therein that whatever may be the animus or intention of a person wanting to acquire title by adverse possession, his adverse possession cannot commence until he obtains actual possession with the required animus."
49. A somewhat similar view was expressed in A.A. Gopalakrishnan v. Cochin Devaswom Board (2007) 7 SCC 482. While adverting to the need for protecting the properties of deities, temples and Devaswom Boards, the Court observed as under: (SCC p.486, para 10)
"10. The properties of deities, temples and Devaswom Boards, require to be protected and safeguarded by their trustees/archakas/shebaits/employees. Instances are many where persons entrusted with the duty of managing and safeguarding the properties of temples, deities and Devaswom Boards have usurped and misappropriated such properties by setting up false claims of ownership or tenancy, or adverse possession. This is possible only with the passive or active collusion of the authorities concerned. Such acts of 'fences eating the crops' should be dealt with sternly. The Government, members or trustees of boards/trusts, and devotees should be vigilant to prevent any such usurpation or encroachment. It is also the duty of courts to protect and safeguard the properties of religious and charitable institutions from wrongful claims or misappropriation."
18. To similar effect is the judgment passed by the Hon'ble Supreme Court in Jagpal Singh & Ors. versus State of Punjab & Ors. AIR 2011 SC 1123 wherein after coming down heavily on the unauthorized occupants, the Hon'ble Supreme Court made the following observations:--
"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 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."
19. Insofar as the contention of the petitioners that even the Civil Court has found the petitioners to be in possession of the suit land for over a period of 60 years is concerned, suffice it to say that it is more than settled that long and continuous possession in law is not necessarily adverse and this question has already been dealt with in detail by this Bench in CWP No. 4087 of 2014 titled Manoj Singh versus Union of India and others, decided on 27.05.2015.
20. The findings recorded by the learned authorities are pure finding of fact which are ordinarily not open to judicial review unless the same are manifestly perverse or are unsupportable from the evidence on record which is not the position in the instant case.
21. It may be reiterated that it was the petitioners themselves who had sought declaration of title from the Civil Court which was denied to them and the said findings admittedly have attained finality. No doubt, the Civil Court protected the possession of the petitioners but only to the extent that they will not be dispossessed, save and except, in accordance with law.
22. The proceedings under the Public Premises Act cannot be said to be the proceedings which are not in accordance with law and the petitioners having been found in unauthorized occupation have, therefore, been rightly ordered to be evicted.
23. In view of the aforesaid discussion, we find no merit in this petition and the same is dismissed in limine. All pending applications also stand disposed of.