NEW LAW PASSED ON PREVENTION OF ENCROACHMENTS ON GOVERNMENT LANDS- HIMACHAL PRADESH

There is a prima facie case of encroachment on forest land at Kotkhai, Rohru, Nankhari, Bhagi, chopal in Shimla. This was stated by the state government before the High Court in its reply on the issue of raising apple orchards by encroaching government land.

 

1) Responsibility of Revenue Officials to detect encroachments:-

At the time of crop inspections or other wise the patwari shall detect all encroachments on government lands in his jurisdiction and prepare a case for ejectment against the encroacher. He will be held responsible if any encroachment remains undetected during crops inspection or otherwise in his circle. The Field kanungo and the Revenue Officers shall be responsible for detection of any encroachment on government lands found during checking of crop inspections in their tours. They shall also be duty-bound to detect encroachments on government lands in their respective jurisdictions.

Whoever:-

(i) being an officer of the Forest Department duty bound to prevent an encroachment over the reserved and demarcated protected forest land.

(ii) being a revenue officer duty bound to prevent any encroachment over land belonging to the government.

(iii) being an officer of the Municipal Corporation, Notified Area Committee or Municipal Committee duty bound to prevent encroachment over the land belonging to these bodies., intentionally or knowingly permits, connives; abets or suffers on account of his commission to detect or report an encroachment in areas, within his jurisdiction shall be punished with imprisonment of either description which shall not be less than one year but which can be extended to three years and shaH also be liable to fine; Provided that the court may, for any special reason to be recorded in writing impose a sentence of imprisonment of less than one year.

Prevention of encroachments on Govt lands under Section 163 ofthe H.P. Land Revenue Act, 1954

“(1) Where Government land or land which has been reserved for the site of a village or for the common purpose of the co-sharers therein has been encroached upon by any co-sharer or other person for any purpose including constl1lction of a building or other structure thereon-then-

(a) The Revenue Officer may of his own motion or on application of any other co-sharer eject the encroaching person (hereinafter in this section referred to as the encroacher) from such land and by order, proclaimed in the manner mentioned in Section 23. prohibit repetition of the encroachment therein. Provided that no encroacher shall be ejected under this clause unless he has been given a reasonable opportunity of showing cause against the ejectment.

(b) the Revenue Officer may, having regard to such principles of assessment of damages as may be prescribed, assess the damages on account of such encroachment and may, by order, requires the encroacher to p~y the wimages within such period, and in such instalments as may be specified in the order:

(c) if the encroacher has erected any building or other structure or bas grown crops or planted trees on the encroached land it shall be competent for the Revenue Officer, while ordering his ejectment to dismantle such building or other structure and confisca~any produce or any other material on such land and put the same in public auction and deposit the sale proceeds thereof into the Government Treasury.

(d) the Revenue Officer, may impose upon the encroacher a fine unto one thousand rupee per bigha or p~ thereof in the case of rrrst encroachment and, where the encroachment is repeated, a fine upto two thousand rupees per bigha or part thereof for each such subsequent encroachment.

(2) Any amount payable as damages under clause (b) of sub-section (1) or as fine under clause (d) of that sub-section may be recovered in the same manner as arrears of land revenue.

(3) When there is a question as to title or to the adverse possession, wherein the possession is ciaimed by an encroacher for a period beyond thirty years in relation to the land from which ejectment is made or is to be made under this section, the Revenue Officer,not below the rank of an Assistant Collector of tbe. First Grade, $hall proceed to detennine the question as if he were a civil court and shall exercise all such powers as are exercisable by a civil court. For the determination of the question under sub-section (3), the Revenue Officer shall follow the same procedure as is applicable to the trial of an original suit by a civil court and he shall record a judgment and decree containing the particulars required by the Code of Civil Procedure, 1908 to be specified therein. . An appeal from the decree of the Revenue Officer made under Sub-section (4) shall lie to the District Judge as if that decree were a decree of a subordinate judge in an original suit. A further appeal from the appellate decree of a District Judge upon an appeal under sub-section (5), shall lie to the High Court only if the High Court is satisfied that a substantial question of law is involved.

No suit or other legal proceeding shall lie against the Revenue Officer or any petson acting under this section in respect of anything in good faith done or purchased to have been done under the provisions thereof or the rules made thereunder.

Definition of ‘land’ for the purpose of section

13.4 For the purpose of section 163 ‘land’ has been defined under Explanation 2 of section 5 (2) of the

Act as follows:- ExciusiOli of jurisdiction of Civil CourtsPowers under Sub-section (3) of Section 163 to Ac 1st Grade Preliminary enquirywhen there is a question as to title or to the adverse possession. Eviction under the H.P. Public Premises and Land (Eviction and Rent Recovery) ~ct,

1971 H.P. Financial Commissioner’s instructions regarding removal of encroachments

 

“For the purpose of this section, and section 163. land means land of all types (including forest land, ghasni land, cultivable or uncultivable waste land and kbadater land) whether assessed to land revenue or

not, used or likely to be used for any purposes whether agricultural or otherwise and includes:-

a) any building, whether constructed or under construction and part thereof and (b) the garden, ground and out-houses if any, appurtenant to such building or part thereof.” From the definition of land for the purpose of this section it is clear that an encroachment on all types of government l~ds including buildings, et~. can be removed by’a Revenue Officer.

13.5 Under clauses (xxv) and (xxvi) of sub-section (2) of section 171 of the H.P. Land RevenueAct, the jurisdiction of civil courts in the matters regarding any question, as to any land or any right to, or title or interest in the land which is an encroached land or in relation to which any person aims that it was vested or is deemed to have been vested in him and that he cannot be ejected there from under sub-section 5 (1) of section 163 and in any matter regarding the ejectment of any person under section 163 or the recovery of darilages or fine payable under sub-section (1) of that section, has been excluded.

13.6 The powers under sub-section (3) of section 163 to determine the question, as if he were a civil court have been conferred on a Revenue Officer not below the rank of AC 1st Grade. Hence, Naib- Tehsildar exercising the powers of AC IInd Grade cannot exercise these powers. He shall at once refer such encroachment cases where question of title or adverse possession are i.nvolved, to Tehsildar exercising the powers of AC 1st grade. .

13.7 If during ‘the course of ejectment proceedings under this section an objection is raised by the encroacher that there is a question as to title or to the adverse possession, the Revenue Officer canDot ignore such objection. He shall make preliminary enquiry and if ht: comes to the conclusion· that such a question is really involved, then only he shall proceed to determine the question, under sub-section (3) of section 163 as if he were a civil court. If during preliminary enquiry he fincisthat 00 such question is involved he shall eject the encroacher from such land after following the prescribed procedure.

Mere raising of question of title or adverse possession does not make incumbent upon the Revenue. Officer to accept it as he has to ascertain and determine whether such a question is involved or not.

13.8 The Govt. land falls within the definition of ‘Public Premises” as. defined under section 2 (e) of the Act. The encroachments on govt lands can be removed under section 5 of the H.P~ Public Premises Land and (Eviction and Rent Recovery) Act, 1971 by the Collector. All SOO (c) in H.P. have been vested with the powers of the Collector under the Act vide H.P. Govt. Notification No. 1-2l/72-LSG,dated 30th June,

13.9 The Financial Commissioner (Rev.) B.p. has issued instructions regarding removal of encroachments on Govt. lands vide letter No. Rev. 2F (S)-l/So-Vol-Ill, dated 13 March 1990 wherein it has been made clear that recourse may preferably be had to the provision~ contained in the H.P. Public Premises and land (Eviction and Rent Recovery) Act for the removal of encroachments on Govt. land than under section 163 of the H.P. Land Revenue Act, 1954, as the fonner Act provides for a better, more efficacious and expeditious and more reasonable remedy in the matter of removal 9f encroachment on Public Premises. Moreover, the jurisdiction of the civil court is barred to entertain any suit or proceedings in respect of eviction of any person who is in unauthorised occupation of any public premises. The ~evenue Officers/Officials should adhere to the above instructions of the Financial Commissioner (Revenue) for speedy removal of encroachments on Govt.lands.

13.10 The encroachment on government lands found within the acquired width and which is apart of controlled area of a scheduled road as declared under section 3 of the H.P. Road Side Land Control Act,. 1968, can be removed under Section 12 (2) of the said Act by the Collector. All the SDO (C) and all the Land Acquisition Officers, PWD have been expowered as Collector under the above Act. The removal of encroachments of such nature under the provisiol1s of this Act is speedy and expeditious and the jurisdiction of civil court is barred. So the case of encroachments of such nature should be dealt with under the Act ibid

13.11 Generally the old encroachments on Govt. lands are regularized during settlement operations by the executive instructions of the Govt. It is the general tendency on the part of the public to encroach Government lands during settlement in order,to take benefit orsuch regularisation. Every official of the Settlement Department right from patwari to the settlement officer is responsible under the law to detect and remove ‘lll fresh encroachments on Govt.lands, which are done during settlement operations.

The patwari shall prepare an encroachment case of fresh encroachment against the encroacher immediately on occurrence. For speedy removal of encroachments, the Revenue Officer (Settlement Naib- Tehsildar/Tehsilqar) shall refer such cases to the Collector under the H.P. Public Premises and Land (Eviction and Rent Recovery) Act, 1971 and Collector under the RP. Land Road Side Control act, 1968 as the case may be for eviction. Old encroachments cases detected during settlement shall be decided by the Settlement Officer in accordance with the policy/orders of the Government or the special rules framed for this purpose, if any.

13.12 The Revenue Officer shall follow the procedure prescribed in C.P.C. for proceedings under sub-sectioll (3) of Section 163 supra. He shall frame issues, record judgment and pass decree.

13.13 When the encroacher does not claim any question of title or adverse possession, the Revenue officer shall pass ejectment order after giving a reasonable opportunity of showing cause against the ejectment.

13.14.The Revenue Officer shall issue a show-cause .notice to the encroacher in the following fonn:- Before AC 1st grade Tehsil District H.P. State Vs SlJ.ri RlO village Tehsil district H.P.

 

 

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