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2017 DIGILAW 1348 (HP)

Chatter Singh v. State Of H. P.

2017-12-06

SANJAY KAROL, TARLOK SINGH CHAUHAN

body2017
ORDER 1. This Court for the past some time is grappling with the menace of encroachments, particularly, those over the forest land, that were highlighted in certain Public Interest Litigations filed before this Court. It was pursuant to directions passed by this Court from time to time, that such encroachers were ordered to be evicted by the competent authorities and aggrieved by such orders, some of them have also filed petitions before this Court. 2. On 06.04.2015, this Court in CWPIL No. 14 of 2014, issued the following directions:- "(a) Respondents No. 8 and 9 are directed to forthwith disconnect the electricity and water connections provided to all illegal structures raised by way of encroachment over the Government land irrespective of whether these structures are permanent, temporary or are simply tin sheets structures. (b) It shall henceforth be obligatory for the office bearers of the Panchayats, being public servants, to report all cases of encroachment within their jurisdiction. (c) In all cases where the encroachments have been removed or yet to be removed, the cost of removal/eviction of such encroachment shall be recovered from the encroacher. (d) In all cases where the encroachments have been removed or yet to be removed, the vacated land shall be fenced with barbed wire at the cost of the encroacher. (e) All crops and plants existing over the encroached land shall be destroyed, cut, uprooted etc. at the costs and expenses of the encroacher. (f) The Forest Guards throughout the State shall henceforth submit a half yearly report to the Head Office through the concerned D.F.O. with respect to the number of encroachments alongwith the details when the same were detected and action taken thereupon. (g) The respondents shall also initiate recovery proceedings for the undue profit earned by the encroacher by not only cutting down the forest trees but also by utilizing the land by sowing crops and raising orchards. This exercise after computing the value of the trees which have been illicitly cut or removed from the land shall be worked out on the basis of five years average yield. (h) In all the aforesaid cases where the amount is now recoverable from the encroacher or an ex-encroacher, if not paid within a reasonable time, be recovered as arrears of land revenue under the H.P. Land Revenue Act, 1978. (h) In all the aforesaid cases where the amount is now recoverable from the encroacher or an ex-encroacher, if not paid within a reasonable time, be recovered as arrears of land revenue under the H.P. Land Revenue Act, 1978. (i) The amount so recovered/collected from the encroacher, shall be ear-marked by the Government for the expenditure towards compensatory afforestation scheme promulgated by the Government or for other incidental or ancillary purposes as it may deem fit and proper." 3. An attempt was thereafter made by some of the parties to have the aforesaid directions modified, however, this Court while declining such request, passed further directions, as would be evident from para-6 of the order dated 27.07.2015, relevant portion whereof, reads thus: "6. It is made clear that we are not going to make any modification in any of the interim directions passed from time to time, but in order to preserve/protect the forests, the crops and the fruits, i.e. apples, we deem it proper to issue the following directions. (i) The State officers in general and the Chief Secretary to the Government of Himachal Pradesh and the Principal Secretary (Forests) to the Government of Himachal Pradesh in particular, are held responsible to pluck the apples, conduct the sale of the apples and utilize the sale price for planting forest trees, which are known as forest species, and not any other kind of plantation, i.e. apple, pears, plum, cherries, almonds, etc. (ii) They are directed to take a exercise of pruning of apple trees, on the encroached forest land, after plucking the apples in order to minimize the apple crop in the coming seasons. (iii) They are also permitted to conduct sale of standing crops on the encroached forest land and utilize the sale price for the purpose of plantation of forest trees and its preservation with a further direction to ensure that no person is allowed to sow seeds of any crop on the encroached forest land. For the coming seasons, if any crop grows on its own, i.e. by natural process, that be destroyed. (iv) The respondents-State are directed to ensure that immediately after removing the crops, plantation drive is made so that no land remains vacant for making room for any person to sow seeds or to plant apple trees and the species of the crop, which is standing, as on today, on the encroached forest land. (iv) The respondents-State are directed to ensure that immediately after removing the crops, plantation drive is made so that no land remains vacant for making room for any person to sow seeds or to plant apple trees and the species of the crop, which is standing, as on today, on the encroached forest land. (v) They are directed to fence the entire land by barbed wires and ensure that no encroachment is made in future. (vi) They are also directed to furnish details and particulars of those persons, who have made encroachment on the forest land by plantation of apple trees, by sowing any crop or by any other method, and whether any action has been taken against them so far and what is the outcome. 4. Later at the commencement of the apple season, the aforesaid case (CWPIL No. 17 of 2014) was again listed on 06.08.2015 and this Court proceeded to pass the following directions: "6. In the given circumstances, we deem it proper to pass following directions: (i) The State - respondents are directed to make videography of the apple trees, other fruit bearing trees and the crops standing on the encroached forest land and also of the auction proceedings. (ii) Lodging of FIRs does not mean that the encroachment proceedings have come to an end, are to be kept under eclipse. FIR relates to trespass and other offences punishable under the applicable penal laws, but the apple trees, other fruit bearing trees, crops and other encroachments made on the forest land are to be removed in terms of the mandate of law read with the orders passed by this Court from time to time and the fruits/crops are to be dealt with in terms of the said orders. (iii) Encroachment on one inch or on thousand inches, is an encroachment and the encroachers are liable to be evicted and dealt with under law." 5. Detailed directions thereafter came to be passed vide order dated 18.10.2016, which reads thus:- "We direct the Principal Chief Conservator of Forests, (HoFF), Himachal Pradesh to personally monitor and ensure that all cases of at least Districts Shimla and Kullu be firmly dealt with and encroachments over government/forest land removed within the period so undertaken by him. Detailed directions thereafter came to be passed vide order dated 18.10.2016, which reads thus:- "We direct the Principal Chief Conservator of Forests, (HoFF), Himachal Pradesh to personally monitor and ensure that all cases of at least Districts Shimla and Kullu be firmly dealt with and encroachments over government/forest land removed within the period so undertaken by him. We clarify that failure to implement the orders of this Court and abide by the undertaking furnished to this Court shall tantamount to aggravation of contempt, consequences whereof already stand explained to him. We are further informed that with respect to all 1481 cases pertaining to encroachments (less than 10 Bighas) in Rohru Forest Division, the concerned District Forest Officer has passed necessary orders. Also out of 418 cases of encroachment pertaining to more than 10 Bighas, 399 cases already stand decided. As such, we direct the District Forest Officer, Rohru to decide the remaining cases, positively within a period of four weeks from today. Further, where orders of eviction already stand passed by the District Forest Officer, Rohru, Principal Chief Conservator of Forests, (HoFF), Himachal Pradesh undertakes to ensure eviction of all encroachers, within four weeks. We are further informed that in all 12 revenue districts of the State of Himachal Pradesh, total number of 4299 cases of revenue challan were filed before various revenue authorities, out of which 1277 cases stand decided and remaining 3022 cases are pending before various revenue authorities. Mr. Anup Rattan, learned Additional Advocate General, under instructions, assures the Court that under all circumstances, all these cases would positively be decided within a period of eight weeks from today. We direct it to be so. Also, an affidavit indicating status of all these cases be filed by the Principal Secretary, Revenue within a period of two weeks from today. We are further informed that out of 1277 such cases, encroachments in respect of 908 cases stand removed and process for eviction with respect to remaining 369 cases is in progress. With respect to the same, Mr. Anup Rattan, learned Additional Advocate General, under instructions, undertakes to ensure removal of all encroachments within a period of four weeks." 6. We are further informed that out of 1277 such cases, encroachments in respect of 908 cases stand removed and process for eviction with respect to remaining 369 cases is in progress. With respect to the same, Mr. Anup Rattan, learned Additional Advocate General, under instructions, undertakes to ensure removal of all encroachments within a period of four weeks." 6. It was after passing of the aforesaid directions that the State itself in exercise of the powers conferred by section 163-A read with Section 169 of the Himachal Pradesh Land Revenue Act, 1953, proposed to make draft rules by repealing the Himachal Pradesh Regularization of Encroachments (in Certain Cases) on Government Land and Disposal of Government Land Rules, 2002, for carrying out the purpose of the Act, whereby amongst other it virtually sought to regularize the encroachment to the maximum limit of five (5) bighas of land in such a manner that own land of the possessor and the land conferred under these rules does not exceed 10 bighas and remaining land, if any, in possession shall stand vacated by such possessor. 7. An application being CMP No. 1212 of 2017 was filed by the respondent-State seeking approval of the Court for inviting objections/suggestions of the general public qua the aforesaid draft rules. It was prayed that permission be accorded to the State Government to publish these draft rules in Rajpatra. 8. This application came up for consideration on 11.04.2017 and was disposed of by observing that the State could proceed with the policy but that would not be construed to mean that this Court had upheld the legality and validity of the proposed policy and if the policy is eventually made, then its validity and legality could be tested at any time, if so questioned. 9. In the interregnum, as observed earlier, some of the aggrieved parties, who have been ordered to be evicted, approached this Court by filing various petitions, which are pending adjudication. 10. As regards the encroachment of less than five (5) bighas of land, the orders of eviction in these cases have been temporarily stayed. However, as regards the encroachments made over more than five (5) bighas of land, majority of the encroachers out of their free will and volition undertook to remove/vacate the same and statements to this effect were made in the open Court and have been duly recorded. 11. However, as regards the encroachments made over more than five (5) bighas of land, majority of the encroachers out of their free will and volition undertook to remove/vacate the same and statements to this effect were made in the open Court and have been duly recorded. 11. We have consciously reproduced some of the orders passed by this Court in order to maintain clarity and consistency and ensure that there is no overlapping of directions passed by this Court from time to time in various petitions that are pending adjudication. 12. It would be noticed that majority of these cases have not been taken up for further proceedings since April/June, 2017 and, therefore, it becomes imperative that we call for a fresh status/compliance report from the respondents. 13. Accordingly, let the respondents file status/ compliance report clearly stating therein the action taken by them in ensuring compliance of the orders that have been passed from time to time, some of which have already been extracted above. 14. In addition to the above, we deem it proper to issue further directions to the following effect:- i). It shall not only be obligatory but shall be the personal responsibility of office bearers/officers, irrespective of their rank and file, of Gram Panchayat, Gram Sabha, Panchayat Samiti, Zila Parishad and employees/officials of the Forest, Revenue and Police Department to ensure that the orders passed by this Court are complied with in its letter and spirit and in default, such officers/official liable for being prosecuted and punished under the Contempt of Courts Act. ii). The Principal Chief Conservator of Forest shall place on record the half yearly report submitted by the Forest Guards with respect to the number of encroachments alongwith the details as was directed by this Court vide its order dated 06.04.2015 (supra) and the consequent action taken thereupon. iii). The respondents shall also submit a detailed status report clearly stating therein the details of proceedings of recovery of undue profit that had been initiated by them in compliance to directions passed vide order dated 06.04.2015 (supra). iv). iii). The respondents shall also submit a detailed status report clearly stating therein the details of proceedings of recovery of undue profit that had been initiated by them in compliance to directions passed vide order dated 06.04.2015 (supra). iv). The respondents shall also ensure that in cases of encroachments that have attained finality, no encroacher(s) who is yet to be vacated for any reason is permitted to enter the encroached land and cultivate or develop the same or utilize the usufruct thereupon and further ensure that the apple and other fruit bearing trees standing thereupon are not permitted to be pruned by the encroachers nor they be permitted to dig its basin or spray the same. In short to ensure that encroacher(s) is not permitted to take any step to reap the harvest out of and from the encroached land. v). Lastly, we direct the respondents to use drone not only to keep hawk eye of 360 degree on encroached areas but also detect the cases of fresh encroachment. 15. This order shall equally apply to all cases of encroachment in excess to five (5) bighas of land. 16. Status/compliance report be filed within two weeks. 17. List on 20.12.2017. 18. Copy dasti.