‘Unconstitutional': Himachal high court strikes down clause regularising govt land encroachments

Time of India

4 days ago

Shimla: In a ruling with wide ramifications, the Himachal Pradesh high court on Tuesday struck down Section 163-A of the Himachal Pradesh Land Revenue Act, 1952, which allowed the state govt to frame rules for regularisation of encroachments on govt land, calling it "manifestly arbitrary and unconstitutional".
A division bench of Justice Vivek Singh Thakur and Justice Bipin Chander Negi observed that by "condoning the illegal acts of the violators," the state was treating "lawbreakers equal to those persons who abide by the law".
Section 163-A was added to the Act in 2002 during the Prem Kumar Dhumal-led BJP govt's tenure.
The court directed the state govt to remove all encroachments by Feb 28, 2026, and to initiate suitable proceedings against the encroachers.
The bench noted that there are approximately 57,549 cases of land encroachment across the state, covering an area of around 10,320 hectares (1.23 lakh bighas). The court also vacated any existing stays on the removal of these encroachments.
Disposing of a petition filed by one Punam Gupta and others in 2002, the court directed the state govt to take action against the revenue authorities in whose jurisdiction land has been permitted to be encroached upon.
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"It promotes dishonesty and encourages violation of law. Significantly, no action stands taken against the erring officials, who, in connivance, allowed such encroachments to happen throughout the state. It is not that thousands of encroachments came up overnight. The officials failed to discharge their duties. The functionaries adopted an ostrich-like attitude and approach," observed the bench.
Taking into account the magnitude of encroachments on govt land, the court directed that the state govt should consider an amendment in the law pertaining to "criminal trespass" by bringing it in consonance with the amendments made in Uttar Pradesh, Karnataka, and Orissa.
The state govt was also directed to make changes in the law to make municipal office bearers, as well as executive officer or commissioner, accountable to report encroachments and take action for their removal, or face consequences for violation of duty.
'Adverse possession law not applicable to govt land'
The high court also reminded the state govt of a Supreme Court judgment in "State of Haryana vs Mukesh Kumar," urging it to consider removing a provision from Section 163 of the HP Land Revenue Act.
This provision had allowed encroachers to claim title to govt land through the law of adverse possession. The bench clarified that adverse possession pleas would not be available in cases where land has been acquired for a public purpose.
In such instances, the encroacher will not only face removal but also be liable to pay use and occupation charges, as well as for any benefits derived from the property.
BOX
'Sec 163-A amendment violates edifice of law'
The division bench held, "If the impugned provision (Section 163 A) is permitted to remain in the statute, it would defeat the very purpose for which the statute was created."
The court observed that in the Act, there exists Section 163, whereby a detailed mechanism has been provided for the removal of encroachment from govt land. But the amendment in the Act by adding Section 163-A violates the very edifice of the principal statute and allows the regularisation of the encroachment.
"It is destructive of the aim and object of the parent statute; it defeats its laudable object; it defies the constitutional provisions; it is demonstratively and excessively contradictory and mutually destructive," said the bench.
MSID:: 123119798 413 |