Bhagi Ram vs State Of H.P. & Others

Tarlok Singh Chauhan, J

It appears from the record that in order to prevent an order being passed by the competent Authority for his eviction from Government land, the petitioner has filed the instant petition for the grant of following substantial reliefs:

“a) That the respondents may kindly be directed to consider and decide the application of the petitioner under Forest Rights Act, 2006 for considering the status of the ancestral house of the petitioner which is in his possession since past 70 years in the form of rights under the Scheduled Tribes category in the interest of justice.

b) That the respondents may kindly be directed to consider the case of the petitioner on the analogy of judgment dated 09.07.2018 in CWP No. 1056 of 2018, passed by this Hon’ble Court. That the record of the case may kindly be summoned for the kind perusal of this Hon’ble Court.”

According to the petitioner, his father was in possession of the land comprised in Khata Khatauni No. 225/396, Khasra Nos. 950 and 952, measuring 00-09-57 since 1954. This land, as per the version of the petitioner was, in fact, purchased by his father from one Sh. Suman Singh through unregistered sale as permissible at the relevant time. Thereafter, the father of the petitioner constructed a double storeyed dwelling house on the said land and ever since then for the last 70 years, the petitioner alongwith his family members has been residing in the said house.

The settlement operation was started in the year 1984 and the Settlement Field Agency wrongly measured the area in favour of the Government and is now going to evict the petitioner.

It is further averred that the petitioner belongs to the Local Schedule Tribe community and, therefore, is entitled to the protection under the Scheduled Tribes and Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 and cannot be evicted in light of the provisions contained in Section 3 thereof.

The respondents have contested the petition by filing reply, wherein it has been specifically submitted that the land in question belongs to the Government and falls under the Forest Conservation Act as all Government land is Forest land as per Notification of the Government dated 25th February, 1952 (Annexure R-1). It has further been submitted that the petitioner is claiming his right under the Forest Rights Act just to justify his encroachment on Government land, which is not legally valid and is in violation of the provisions contained in Forest Conservation Act.

It is further submitted that the claims under the Forest Rights Act have to be acknowledged and verified by the Gram Sabha in which the concerned Forest Rights Committee assists the Gram Sabha in physically visiting the site and verifying the nature and extent of the claim and evidence. However, no such Forest rights have been given in favour of the petitioner.

The petitioner being a land encroacher is not entitled to the benefit of the judgment dated 09.07.2018, rendered by this Court in CWP No. 1056 of 2018, titled as Uday Singh vs. State of H.P. & others and further these directions do not restrain the respondents from deciding eviction proceedings under the H.P. Public Premises and Land (Eviction & Rent Recovery Act) 1971. What required is only assigning of sufficient reasons for passing the order.

We have heard learned Counsel for the parties and have gone through the entire record carefully.

It appears that the petitioner is already facing eviction proceedings under the H.P. Public Premises and Land (Eviction & Rent Recovery Act), 1971 and that the instant petition has been filed as a counter-blast to pre-empt any adverse order being passed in those proceedings.

That apart, there is nothing on record to suggest that the land belongs to the petitioner and even otherwise, the plea of adverse possession is also not sustainable in the instant case, as there is nothing on record to suggest that the plea was ever put forth against the State. After all physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature.

Plea of adverse possession is not only a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show:

(a) On what date he came into possession;

(b) What was the nature of his possession;

(c) Whether the factum of possession was known to the other party;

(d) How long his possession has continued, and

(e) His possession was open and undisturbed.

Having failed to place on record the relevant pleadings, we are left with no other option but to draw an adverse inference against the petitioner.

Even otherwise, it is more than settled that all lands which are not the property of any person or which are not vested in a local authority, belong to the Government. All unoccupied lands are the property of the government, unless any person can establish his right or title to any such land. This presumption available to the Government is not available to any person or individual. Establishing title/possession for a period exceeding twelve years may be adequate to establish title in a declaratory suit or any other proceeding against any individual. On the other hand, title/possession for a period exceeding thirty years will have to be established to succeed in a declaratory suit or any other proceeding for title against the Government. This follows from Article 112 of the Limitation Act, 1963, which prescribes a longer period of thirty years as limitation in regard to suits by Government as against the period of 12 years for suits by private individuals. The reason is obvious. Government properties are spread over the entire State and it is not always possible for the Government to protect or safeguard its properties from encroachments.

The onus to prove title to unoccupied lands belonging to the Government is on the private parties. Such lands are presumed to be Government land and weakness in Government’s defence or absence of contest are not sufficient to grant declaratory or injunctive decrees against the Government by relying upon one of the principles underlying pleadings, that the averments contained therein have not been denied or traversed are deemed to have been accepted or admitted. Similarly, the rights, entitlement and presumption of title is clearly in favour of the Government and has, therefore, to be distinguished from those of private parties.

Similar issue came up before the Hon’ble Supreme Court in R. Hanumaiah and another vs. Secretary to Government of Karnataka, Revenue Department and others (2010) 5 SCC 203 and it is apt to reproduce the relevant observations which reads thus:

Nature of proof required in suits for declaration of title against the Government

“19. Suits for declaration of title against the government, though similar to suits for declaration of title against private individuals differ significantly in some aspects. The first difference is in regard to the presumption available in favour of the government. All lands which are not the property of any person or which are not vested in a local authority, belong to the government. All unoccupied lands are the property of the government, unless any person can establish his right or title to any such land. This presumption available to the government, is not available to any person or individual. The second difference is in regard to the period for which title and/or possession have to be established by a person suing for declaration of title. Establishing title/possession for a period exceeding twelve years may be adequate to establish title in a declaratory suit against any individual. On the other hand, title/possession for a period exceeding thirty years will have to be established to succeed in a declaratory suit for title against government. This follows from Article 112 of Limitation Act, 1963, which prescribes a longer period of thirty years as limitation in regard to suits by government as against the period of 12 years for suits by private individuals. The reason is obvious. Government properties are spread over the entire state and it is not always possible for the government to protect or safeguard its properties from encroachments. Many a time, its own officers who are expected to protect its properties and maintain proper records, either due to negligence or collusion, create entries in records to help private parties, to lay claim of ownership or possession against the government. Any loss of government property is ultimately the loss to the community. Courts owe a duty to be vigilant to ensure that public property is not converted into private property by unscrupulous elements.

Many civil courts deal with suits for declaration of title and injunction against government, in a casual manner, ignoring or overlooking the special features relating to government properties. Instances of such suits against the government being routinely decreed, either ex parte or for want of proper contest, merely acting upon the oral assertions of plaintiffs or stray revenue entries are common. Whether the government contests the suit or not, before a suit for declaration of title against a government is decreed, the plaintiff should establish, either his title by producing the title deeds which satisfactorily trace title for a minimum period of thirty years prior to the date of the suit (except where title is claimed with reference to a grant or transfer by the government or a statutory development authority), or by establishing adverse possession for a period of more than thirty years. In such suits, courts cannot, ignoring the presumptions available in favour of the government, grant declaratory or injunctive decrees against the government by relying upon one of the principles underlying pleadings that plaint averments which are not denied or traversed are deemed to have been accepted or admitted.

A court should necessarily seek an answer to the following question, before it grants a decree declaring title against the government : whether the plaintiff has produced title deeds tracing the title for a period of more than thirty years; or whether the plaintiff has established his adverse possession to the knowledge of the government for a period of more than thirty years, so as to convert his possession into title. Incidental to that question, the court should also find out whether the plaintiff is recorded to be the owner or holder or occupant of the property in the revenue records or municipal records, for more than thirty years, and what is the nature of possession claimed by the plaintiff, if he is in possession - authorized or unauthorized; permissive; casual and occasional; furtive and clandestine; open, continuous and hostile; deemed or implied (following a title).

Mere temporary use or occupation without the animus to claim ownership or mere use at sufferance will not be sufficient to create any right adverse to the Government. In order to oust or defeat the title of the government, a claimant has to establish a clear title which is superior to or better than the title of the government or establish perfection of title by adverse possession for a period of more than thirty years with the knowledge of the government. To claim adverse possession, the possession of the claimant must be actual, open and visible, hostile to the owner (and therefore necessarily with the knowledge of the owner) and continued during the entire period necessary to create a bar under the law of limitation. In short, it should be adequate in continuity, publicity and in extent. Mere vague or doubtful assertions that the claimant has been in adverse possession will not be sufficient. Unexplained stray or sporadic entries for a year or for a few years will not be sufficient and should be ignored.

As noticed above, many a time it is possible for a private citizen to get his name entered as the occupant of government land, with the help of collusive government servants. Only entries based on appropriate documents like grants, title deeds etc. or based upon actual verification of physical possession by an authority authorized to recognize such possession and make appropriate entries can be used against the government. By its very nature, a claim based on adverse possession requires clear and categorical pleadings and evidence, much more so, if it is against the government. Be that as it may.”

The Court is dealing with public property, wherein the public has interest and it is more than settled that private interest must yield to public interest.

It has to be remembered that the right and title of the State cannot be permitted to be destroyed so as to give an upper hand to the encroachers, unauthorized occupants or land grabbers as has been held by the Hon’ble Supreme Court in Mandal Revenue Officer vs. Goundla Venkaiah and another (2010)2 SCC 461 in the following terms:

“47. In this context, it is necessary to remember that it is well neigh 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.

In State of Rajasthan v. Harphool Singh (Dead) through Lrs. 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 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."

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."

As observed earlier, the petitioner is a rank-encroacher and after making encroachments has turned the litigation into fruitful industry, by succeeding in protecting his illegal possession and reaping the usufruct out of the land, which as per his own admission comprises of a double storeyed dwelling house. This illegal possession cannot be permitted to continue. Therefore, it is the duty of the court to see that such wrongdoer is discouraged at every stage.

The very object and purpose of encroaching upon the forest land is only to make a quick buck by illegal means. Normally, the encroacher who has cut down the forests to pave way for constructing his double storeyed house should be made to cough up the extra buck which he has earned over a long period of time.

People have long referred to the trees as ‘Earth’s lungs’ as they play a crucial role in our existence, consuming large quantities of carbon dioxide and producing oxygen which enables us to breathe. Apart from providing oxygen, they also cleanse the air and improve its quality, control climate, protect soil and support vast varieties of wildlife. It is universally accepted that deforestation is major contributing factor of climate change and that is why it is so important to protect trees and secure our natural landscapes for future generations.

The ‘sustainable development theory’ recognizes and avows ‘precautionary principle’ and ‘polluter pays principle’. The State is having the rights flowing from their position as parents patriae. The forest conservation and eco-management are two inevitable obligations which are to be respected when the theory of ‘sustainable development’ is put into operation. What is required is the insistence for ‘gun and guard’ approach in day-to-day supervisory functions of the Government.

The 1992 Rio Declaration on environment and development has been adopted by India and principle 13 thereof provides:

“The States shall develop national law regarding liability and compensation for the victims of pollution and other environmental damage. States shall also co-operate in an expeditious and more determined manner to develop further international law regarding liability and compensation for adverse effects of environmental damage caused by activities within their jurisdiction or control to areas beyond their jurisdiction.”

In view of the above declaration, the State is under obligation to safeguard and compensate not only the victims of pollution but also liable to compensate for the adverse effects of an environmental damage. The ‘Polluters Pays Principle’ as interpreted by the Hon’ble Supreme Court means that the absolute liability for harm to the environment extends not only to compensate the victims of pollution but also the cost of restoring the environmental degradation.

Remediation of the damaged environment is part of the process of ‘Sustainable development’ and as such polluter is liable to pay the cost not only to the individual sufferers but even to the society as a whole, towards the cost of reversing the damaged ecology.

The ‘Polluter Pays Principle’ can appropriately be applied to the cases of encroachers because it is the injury caused by each of the occupier/encroacher to the pristine forest wealth and is, therefore, liable to compensate for the same.

It is more than settled that the forest land cannot be put to use for any non-forest purpose but for the facts already set out, it would reveal that there would be environmental degradation in using the forest for non-forest purposes by the occupier/encroacher affecting the environmental equilibrium. This position is apodictic and unassailable.

The activities of the occupiers/encroachers in the forest land for the last so many years have had its antagonistic effectiveness in the environmental premise. Therefore, all those responsible for environmental degradation cannot be exculpated.

It is, therefore, the duty of this court to neutralize any unjust enrichment and undeserved gain made by the litigants only on account of keeping the litigation alive.

In Indian Council for Enviro- Legal-Action vs. Union of India and others (2011) 8 SCC 161, it is noticed that conduct of the parties is to be taken into consideration and it was held as follows:

“197. The other aspect which has been dealt with in great details is to neutralize any unjust enrichment and undeserved gain made by the litigants. While adjudicating, the courts must keep the following principles in view:

It is the bounden duty and obligation of the court to neutralize any unjust enrichment and undeserved gain made by any party by invoking the jurisdiction of the court.

When a party applies and gets a stay or injunction from the court, it is always at the risk and responsibility of the party applying. An order of stay cannot be presumed to be conferment of additional right upon the litigating party.

Unscrupulous litigants be prevented from taking undue advantage by invoking jurisdiction of the Court.

A person in wrongful possession should not only be removed from that place as early as possible but be compelled to pay for wrongful use of that premises fine, penalty and costs. Any leniency would seriously affect the credibility of the judicial system.

No litigant can derive benefit from the mere pendency of a case in a court of law.

A party cannot be allowed to take any benefit of his own wrongs.

Litigation should not be permitted to turn into a fruitful industry so that the unscrupulous litigants are encouraged to invoke the jurisdiction of the court.

The institution of litigation cannot be permitted to confer any advantage on a party by delayed action of courts.”

It is not only high time, but it is necessary to arrest and curb immediately such unlawful activity of encroachment over the government lands as the public order is adversely affected by such unlawful activity. It is probably on account of the higher returns from agricultural and horticultural pursuits from the encroached lands that unscrupulous persons have occupied without any semblance of right, vast extends of land belonging to the Government. Therefore, unless all such cases of illegal encroachments are dealt with sternly and swiftly, the evil cannot subside and social injustice will continue to be perpetrated with impunity.

It is evidently clear from the aforesaid discussion that this petition not only sans merit, but the intent behind filing this petition is also not bonafide as the only endeavour of the petitioner appears to be to prolong the litigation so as to enable him to reap the benefits from the large tract of government land illegally encroached by him and thereby convert this litigation into a fruitful industry.

Accordingly, this petition is dismissed.

The pending applications, if any, are also disposed of.

However, before parting, it needs to be clarified that the eviction to be carried out by the respondents shall be at the cost of the petitioner and this decision shall also not come in the way of the respondents in claiming any other relief against the petitioner including mesne profits etc. before the competent authority or Court of law and that is why we are not imposing costs on the petitioner.