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Synopsis

The Supreme Court has said that a citizen has no right to encroach on public land and if indeed any citizen encroaches public land and such encroachment is not otherwise entitled to be regularised under any law, a citizen has no right to sit on it.

A bench of Justices Dipankar Datta and Prashant Kumar Mishra stressed that in such a case, the minimum safeguard that the State must ensure while ordering the eviction of an alleged unauthorised occupant is to follow a fair procedure.

The court set aside the Himachal Pradesh High Court's order that dismissed a batch of writ petitions filed by Babu Ram and others against the orders issued for their eviction as unauthorised occupants of the forest land.

The court said in such cases a proper procedure, which would, inter alia, include a formal exercise conducted for demarcation of the land in the presence of the party likely to be affected if an order of eviction is passed, and issuing a proper show-cause notice under Section 4 of the Himachal Pradesh Public Premises and Land (Eviction and Rent Recovery) Act, 1971, indicating the grounds on which action is proposed. This notice must be served along with any document that the State intends to rely on during the course of the eviction proceedings.

The court emphasised the importance of following a fair and proper process, including consideration of the noticee's response to the show-cause notice, sufficient opportunity to present evidence, and application of mind to all the materials on record before issuing an eviction order, if at all required. If an appeal is filed, it is needless to observe that the provisions of the 1971 Act governing the disposal of such appeals also need to be strictly adhered to, apart from natural justice principles, the bench said.

In the instant matter, the bench found that the order of the Collector did not meet the standards of a speaking order that could be regarded as valid. It failed to record what the claims and counterclaims were. "The absence of any discussion about why the evidence adduced by one party was preferred over the evidence adduced by the other is conspicuous. In fact, there was no discussion of the evidence at all", it pointed out.

"Adverting to the materials on record showing application of mind was the minimum which was required of the Collector while he proceeded to adjudicate proceedings, though administrative in nature, but was obliged to act quasi-judicially. The order, without a doubt, is clearly in breach of principles of natural justice and principles of fairness in administrative action," the bench said.

The court held that there was no reason, far less a cogent and tenable one, appearing on the face of the order of the Collector. Such an order merely records the various stages through which the proceedings progressed and the Collector’s ipse dixit that Babu Ram was an unauthorised occupant of forest land, it said.

The order of the Divisional Commissioner, acting as the Appellate Authority who was approached by Babu Ram to challenge the order of November 7, 2015, of the Collector, fares no better, it held.

The court said the order of the Collector fell totally short of being a “speaking order,” and this finding of the Commissioner was clearly indefensible.

"We are a little surprised that these infirmities in the original order of eviction as well as the appellate order went unnoticed by the High Court, which proceeded to dismiss the writ petition of Babu Ram. Reasonable and adequate opportunity of defence not having been extended, we have not the slightest hesitation to set aside the original order of eviction, the appellate order and the order of the High Court dismissing the writ petition," the bench said.

Since all the other appellants were found to be in unauthorised occupation, they were granted similar relief.

The court directed that the respondent-State, through its appropriate department, should undertake an appropriate exercise for the demarcation of forest land upon written notice to Babu Ram. It stated that such an exercise should ideally be completed as early as possible, preferably within two months from the date.

A similar exercise shall be conducted in respect of the other appellants who are also alleged to be in unauthorised occupation of forest land, the court directed.

After following the due procedure, the court said, if an order of eviction is passed, the same must be a speaking order. The unauthorised occupants in such cases shall be at liberty to work out their remedies in accordance with the other provisions of the 1971 Act, it ordered.

"Since the appellants were dispossessed of their structures prior to filing of the special leave petitions giving rise to these civil appeals, status-quo ante as prevailing on the date the writ petitions were instituted before the High Court shall be restored which shall, however, be subject to and abide by further orders that might be passed in freshly initiated eviction proceedings," the bench said.

The appellants contended that all the orders of eviction were based on a purported demarcation report prepared without notice to them. In contrast, the State claimed that all the appellants were informed verbally of the proposed exercise to demarcate forest lands and that, despite being aware, they did not participate in such exercise.

Once notice under Section 4 of the 1971 Act was issued, Babu Ram responded by raising a contention that he was not in unauthorised occupation of any forest land. He also contended that he had been in occupation of the subject land for a long time and that the land under his occupation, being Government land, entitled him to the protection of regularisation in terms of the provisions contained in Section 163A of the Himachal Pradesh Land Revenue Act, 1954, and the Rules framed thereunder.

The Collector-cum-Assistant Conservator of Forests, Rampur Bushahr, Himachal Pradesh, upon consideration of Babu Ram's response to the show-cause notice, the evidence led by the parties, and after hearing them, proceeded to pass the order on November 7, 2015.

"We have read the order dated 7th November, 2015 in between the lines to trace the reasons premised whereon Babu Ram was identified as an unauthorised occupant of forest land. The order, inter alia, records preparation of a challan put up by the Range Forest Officer, Nankhari before the Collector alleging that Babu Ram was in unauthorised occupation of forest land as the starting point based whereon notice under section 4 of the 1971 Act was issued," the bench said.

Case Title: Babu Ram Vs State of Himachal Pradesh & Anr