Himachal HC strikes down Encroachment Regularisation Law; Thousands face eviction

United News of India

a day ago

Shimla, Aug 5(UNI) In a landmark decision with far-reaching implications, the Himachal Pradesh High Court today struck down Section 163-A of the Himachal Pradesh Land Revenue Act, 1954, a provision that enabled the regularisation of encroachments on government land.
The judgment, delivered by a division bench comprising Justice Vivek Singh Thakur and Justice Bipin Chander Negi, ruled the provision unconstitutional and directed the State to remove all encroachments that were to be regularised under the now-nullified section.
The verdict came in response to a writ petition filed 23 years ago: Poonam Gupta vs State of Himachal Pradesh. It challenged the constitutional validity of Section 163-A. The provision, introduced in 2002 during the first tenure of Chief Minister Prem Kumar Dhumal, allowed the State Government to frame rules for the regularisation of encroachments on government land, ostensibly to benefit small and marginal farmers.
However, the court observed that this legislative maneuver attempted to "legalise illegality" and was inherently violative of Article 14 of the Constitution, which guarantees equality before law. 'Equality cannot be claimed in illegality,' the court stated, adding that 'the impugned provision is in fact legislation for a class of dishonest persons.'
The court emphasized that deliberate and voluntary encroachments amount to criminal trespass under Section 441 of the Indian Penal Code and held that such infractions cannot be regularised. It cited earlier Supreme Court judgments which make a distinction between involuntary encroachments due to dire circumstances and deliberate, designed land grabs.
The court cited government records to show that over 1.23 lakh hectares of land had been encroached upon and that 1.67 lakh applications had been received under the now-struck down regularisation scheme. This, the court noted, encouraged large-scale land grabbing, dishonesty, and complete disregard for environmental and legal safeguards.
Referencing the doctrine of public trust and the constitutional duty of both citizens and the State to protect natural resources, the bench remarked:'Failure to remove encroachments and protect government land is a failure in governance. It promotes dishonesty and undermines the rule of law.'
Importantly, the court underscored that public resources, including forests, rivers, mountains, and lands belong to the people and must be safeguarded not just for the present, but for future generations. It invoked principles such as sustainable development and intergenerational equity, stating that orchards and private use of forest lands defeat the very purpose of ecological conservation.
The judgment also dismantled the argument that Section 163-A was meant to uplift the poor and downtrodden. It noted that there are already three distinct schemes, including the HP Grant of Land to Landless Persons, designed to benefit the truly landless. The court was critical of the misuse of public sympathy to justify unauthorised land occupation and decried the misuse of 'public interest' to favour select individuals who violated the law.
Moreover, the court observed glaring contradictions in the State's rationale. While the legislature attempted to enforce stricter rules against encroachments under Section 163, it simultaneously introduced Section 163-A to regularise the same. 'It is demonstratively and excessively contradictory and mutually destructive,' the judgment read.
In a related context, the court highlighted its previous directions to the government, issued in PILs 17 of 2014 and 9 of 2015, to enforce strict measures against encroachments and hold revenue, forest, and public works officials accountable for inaction. Those directions are to remain in force, and all officials failing to report or act on encroachments will face disciplinary, civil, and even criminal proceedings.
During the proceedings, the court was informed that the State had abandoned its 2017 proposal to bring new rules for regularisation and had no current policy to revive the struck-down law. This came after multiple stay orders in related cases were issued based on the pending draft rules.
Notably, the verdict also delves into the legal critique of adverse possession, calling it an archaic and irrational doctrine. The bench said it was illogical to reward a trespasser merely for occupying land illegally for 12 years. It called upon the legislature to reconsider such laws which, in effect, legitimize dishonesty.
The ruling is expected to ignite a political and legal storm in the State. With tens of thousands of applicants having admitted to encroachments by way of affidavits over the past two decades, lured by the possibility of regularization, the judgment puts them at risk of immediate eviction and penalties. The High Court, however, was clear that this is a price that must be paid to restore the rule of law and environmental balance.
'The court cannot remain a silent spectator while public land is grabbed in connivance with officials,' it said. 'This would amount to destroying democratic institutions and endorsing anarchy.'
In conclusion, the court ordered the State and all competent authorities to carry out eviction proceedings as per existing laws and the timeline prescribed by the Additional Chief Secretary (Revenue), and ensure fencing, removal of illegal structures, and restoration of forest cover wherever necessary.
UNI ML AAB