encroachment

Case BriefsHigh Courts

Madhya Pradesh High Court: G.S. Ahluwalia, J. dismissed a writ petition filed by the petitioners claiming that the Additional Director General of Police was unlawfully encroaching upon their land. 

The petitioners had claimed that they had approached the relevant authorities, but no action was taken by them. They subsequently filed a writ petition praying the Court to declare the construction over the land in dispute by the respondent as illegal, unauthorized, and encroachment. They prayed for dismantling the unauthorized construction of the hotel building and to remove the restriction/hindrance caused in the way of the petitioners in approaching the property.

The Counsel for the petitioners, Balwant Singh Kushwah, argued that the right to hold the property was a fundamental right and, therefore, the petition was maintainable. It is also submitted that the respondent had also encroached upon some other plots and accordingly, the husband of the petitioner had also filed a civil suit for declaration of title and permanent injunctions. By an order dated 30-06-2014 passed in a Civil Suit, the respondent was restrained from interfering with the possession, however, the respondent had dispossessed the husband of the petitioner, therefore the suit would not be an efficacious remedy. It was further submitted that the husband of the petitioner had not filed an application under Order 39 Rule 2-A CPC. Furthermore, there was no averment in the petition that the order stated above had attained finality.

The Court, however, held that it was incorrect to state that, “right to hold a property is a fundamental right”. They explained that the petition was filed primarily against the respondent in his individual personal capacity and not against any act done by him in the capacity of Additional Director General of Police. It is a well-established principle of law that the writ petition against a private individual is not maintainable. If the petitioner was of the view that the respondent was illegally trying to encroach upon the land or had illegally taken possession of the said land, then they always have an efficacious remedy of filing a Civil Suit. The Court was of the opinion that the petition was not maintainable and dismissed it. [Laxmi Devi v. State of M.P., 2019 SCC OnLine MP 3629, decided on 25-11-2019]

Case BriefsHigh Courts

Jharkhand High Court: Rajesh Shankar, J. quashed and set aside the impugned order issued by the Chairman of Lohardaga Municipality. The had petitioner filed a petition to challenge the order issued to them by the respondent, whereby the then Assistant Vice-President (Mines) of the petitioner (Hindalco Industries Limited) was directed to remove part of its boundary wall alleging the same to be an encroachment.

Indrajit Sinha, counsel for the petitioner, argued that the impugned letter issued on 02-01-2012 was without jurisdiction as the respondent was not the competent authority to issue the said letter to the petitioner for removing the alleged encroachment. He further submitted that even if the concerned boundary wall of the petitioner was encroachment, a due proceeding for the removal of the same should have been initiated, that too, by a competent authority. Therefore, the impugned letter should be quashed by the Court.

A counter affidavit was filed by the respondent where he justified the issuance of the impugned letter by stating that the said part of the boundary wall of the petitioner was encroachment and the same was required to be removed.

The Court before giving any judgment on the said matter clarified that the issue before them was to not ascertain as to whether the boundary wall of the petitioner in question is an encroachment, rather the issue is to ascertain whether, for removal of any encroachment, the respondent is the competent authority. The Court explained that if any structure or installation was alleged to be a public encroachment, the same is required to be removed by initiating an appropriate proceeding under the Bihar (now Jharkhand) Public Land Encroachment Act, 1956 and by the competent authority designated under the Act.

Therefore, the Court held that the impugned order dated 02-01-2012 issued by the respondent, the Chairman of Lohardaga Municipality, cannot be sustained in law as he didn’t have the jurisdiction to do so. The Court didn’t go into the issue of the alleged encroachment by the petitioner on its facts.[Hindalco Industries Ltd. v. Lohardaga Municipality, 2019 SCC OnLine Jhar 1288, decided on 18-09-2019]

Case BriefsHigh Courts

Himachal Pradesh High Court: Ajay Mohan Goel, J. entertained a writ petition filed under Article 227 of the Constitution of India, where the petitioner had challenged the order passed by the Civil Judge, where the application for appointment of a Revenue Officer as a Local Commissioner under Order 26 Rule 9 CPC was allowed.

Brief facts necessary for the adjudication of the case were, that the respondent/plaintiff had filed a suit against the petitioners/defendants for a decree of an injunction for restraining the defendants from raising any construction, dispossessing, interfering, cutting, felling and removing the trees standing upon the suit land. In an alternative suit, the plaintiff had also prayed for possession of the said suit property. Subsequently, during the pendency of the said suit, the plaintiff had filed an application under Order 26 Rule 9 of the Code for appointment of any Revenue Officer as Local Commissioner for locating the exact nature and extent of encroachment by the defendants and fixing boundaries of the suit land.

The counsel for the plaintiff averred in the application that the parties had strained relation with each other; despite a status quo order was passed, the defendants interfered in the suit land, and they also encroached upon the suit land, hence appointment of a Local Commissioner was necessary for locating the exact nature and extent of encroachment by the defendants.

On the contrary, the counsel for the defendants resisted the application and submitted that it was always open to the plaintiff to have had approached the Revenue Authorities for getting the land demarcated and the Court was not to create evidence for either of the parties. It was further the case of the defendants that they were not interfering in the suit land nor they had any intention to do so and they were in possession of their property pursuant to the recent partition having entered into between the parties and the plaintiff was stopped from filing the application. It was denied by the defendants that they were encroaching upon the suit land, as alleged.

Trial Court allowed the application and held, that as issues were not yet framed in the main suit and as proceedings in the case were at a preliminary stage, therefore, if a Local Commissioner in the case was appointed, no prejudice was to be caused to the defendants, rather it was a help in the proper and final adjudication of the dispute between the parties.

But the defendant was not satisfied by the order of the Trial Court, hence, filed the instant petition, it was argued that the order was not sustainable in the eyes of law as was passed in hot haste as the issues were not framed. It was further argued that there was no necessity of such an application being entertained by the learned Trial Court because it was just a mere allegation of the plaintiff that the suit land stood encroached upon by the defendants, onus was upon him to prove the same and it was not for the Court to create evidence in favour of the plaintiff.

The Court contemplated the arguments of the parties and thus, observed that Order 26 Rule 9 of the Code, inter alia, provided that in any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, the Court may issue a commission to such person as it thinks fit directing him to, make such investigation and to report thereon to the Court. Meaning thereby that it has to be the satisfaction of the Court that a local investigation is necessary or proper for the purpose of elucidating any matter in dispute. Hence the Court held that, “This provision is not a tool which is to be permitted to be used by the parties concerned to create evidence in their favour. This important aspect of the matter has also been lost sight of by the learned Trial Court while passing the impugned order.” Hence the order for appointing a Local Commissioner was set aside.[Naseeb Deen v. Harnek Singh, 2019 SCC OnLine HP 1034, decided on 19-07-2019]

Case BriefsHigh Courts

Jammu & Kashmir High Court: Sanjay Kumar Gupta, J. dismissed a writ petition seeking a writ of mandamus against official respondents for restraining private persons from encroaching of the suit property of the petitioner.

The petitioner herein had filed a writ petition under Article 226 of the Constitution of India read with Article 103 of Constitution of Jammu & Kashmir, seeking mandamus commanding the official respondents to restrain certain private persons from interfering in the peaceful possession of petitioner’s suit property.

The Court noted that the petitioner was claiming relief for restraining the encroachment of his land by private persons. It was opined that this was not the function of official respondents, because they are executive functionaries of State. Since, the dispute involved the civil rights of the petitioner, it would be proper for him to seek a remedy before a civil court by filing a suit for injunction.

While determining the petition before it, the Court relied heavily on Roshina T v. Abdul Azeez, (2019) 2 SCC 329 where it was held that “a regular suit is an appropriate remedy for settlement of the disputes relating to property rights between the private persons. The remedy under Article 226 of the Constitution shall not be available except where violation of some statutory duty on the part of statutory authority is alleged.” In that case, the Supreme Court had held that a High Court cannot use its constitutional jurisdiction for deciding disputes, for which remedies under the general law, civil or criminal are available. The jurisdiction under Article 226 of the Constitution being special and extraordinary, it should not be exercised casually or lightly on mere asking by the litigant.

In view of the above, the petition was dismissed but liberty was granted to the petitioner to approach the civil court.[Paras Ram v. State of J&K, 2019 SCC OnLine J&K 479, decided on 24-05-2019]

Case BriefsHigh Courts

Rajasthan High Court: The Bench of Mohammad Rafiq and Goverdhan Bardhar, JJ. disposed of a petition with the direction to the petitioner to approach the District Collector for alleviating the grievances of the petitioner.

The facts of the case are that a public interest litigation petition was filed by the petitioner contending that the Khasra in question was recorded in the revenue records as ‘gair mumkin pokhar’ (pond) and ‘gair mumkin rasta’ respectively. The said ‘pokhar’ was used by the villagers to feed water to the cattle and ‘rasta’ was being used by the villagers for going to said ‘pokhar’ and rainy water also came through that ‘rasta’ to the ‘pokhar’. It was contended that the Respondents 6 and 7 had encroached upon the aforesaid land of ‘gair mumkin pokhar’ and ‘gair mumkin rasta’ and closed the ‘rasta’ as also filled up the ‘pokhar’ with the mud. The petitioner several times requested the Tehsildar and the SDO to remove the encroachment over the aforesaid land but no action was taken by the concerned authorities. It was also contended that due to the aforesaid encroachment, the residents were suffering very hardship and they had no alternative ‘pokhar’ to feed their cattle. It was thus prayed that the respondents be directed to remove the encroachment.

The Court instead of directly entertaining this public interest litigation petition directed the petitioner to approach the District Collector for an appropriate action that should be taken within 3 months. [Bhagwan Singh v. State of Rajasthan, 2019 SCC OnLine Raj 78, Order dated 04-02-2019]

Case BriefsHigh Courts

Madras High Court: A Bench of S.M. Subramaniam, J. while addressing a writ petition stated that “If a deity in a temple commits an act of encroachment, that is also to be dealt with, in accordance with law and because it is a deity, the Rule of Law cannot be diluted.”

The present writ petition was filed in regard to the removal of the unauthorised construction in the name of Vinayagar Temple in Revenue Divisional Office, Coimbatore.

For the above-stated concern, the High Court was of the opinion that various temples on public roads, Government Poramboke areas, Water bodies and Water resources are being constructed by few land mafias and greedy men for personal gains and for unlawful enrichments. The reason behind the construction of these temples at such places is either to grab land or personal unlawful enrichment. It has also been stated by the Court that these temples are constructed without obtaining the required permissions from the authorities concerned.

“Even Deity as a legal person, cannot commit an act of encroachment.”

Therefore, taking into consideration the issues as stated above, the High Court stated that, Temples, Churches, Mosques or any other religious institutions, if constructed by encroaching public roads causing inconvenience to vehicular traffic or if any constructed in water resources and water bodies, depriving the citizen to get water resources, then all to be dealt in accordance with law as stated earlier.

Thus the bench concluded the order by stating the need to implead the “State” as the party for consideration of issues appropriately. Learned counsels were requested to file counter affidavit and statistics regarding the existence of all such Temples, Churches, and Mosques in an encroached public land, Poramboke lands, water bodies, and water resources. Further, the matter was posted for 21-01-2019. [K. Ramakrishnan v. District Collector, 2019 SCC OnLine Mad 36, Order dated 04-01-2019]

Case BriefsHigh Courts

Karnataka High Court: A Division bench comprising of Dinesh Maheswari and S.G. Pandit, JJ. while hearing a civil writ petition declined to exercise its jurisdiction under public interest litigation since the petition involved the determination of questions of fact.

The instant writ petition was filed under Articles 226 and 227 of the Constitution of India praying to call for records pertaining to the case on hand and seeking a direction against the respondent State to clear the road by removing encroachments made on public roads.

The court, on the day of preliminary hearing, stated that it was not persuaded to entertain the present petition as a public interest litigation (PIL) because though the petition alleged several encroachments on public pathway and roads but none of the alleged encroachers had been impleaded as a party to the said petition, not even in a representative capacity. Further, it was noted that the matter involved questions of fact which could not be determined in the PIL jurisdiction of the Court.

With the aforesaid observations and noting, the court dismissed the present petition with a liberty to the petitioner to take recourse to appropriate remedies in accordance with law. [Chaitanya Mandal v. State of Karnataka,2018 SCC OnLine Kar 1755, decided on 23-10-2018]

Case BriefsHigh Courts

Uttaranchal High Court: A Division Bench of Rajiv Sharma, ACJ. and Lok Pal Singh, J., gave directions to the State Government against the encroachment upon the Alpine meadows in the State.

The petition was sought to conserve and preserve Bugyal (Alpine meadows) situated below the area of Roopkund in District Chamoli. Referred to as the ‘Nature’s own gardens’, the area was primarily meant for grazing the sheep and goats and comprises of life-saving medicinal plants. It had been prayed to direct the forest department to make a Policy for the protection of Aali-Bedini-Bagzi Bugyals, consequently restricting grazing of sheep and goats to local shepherds hence making it non- commercialized. The petition also directed to remove permanent fibre huts constructed by the Forest department made of concrete base thereby restricting the overnight stay of the tourists in the local surroundings plus put an end to the gathering of ‘Keera Jari’ (Yarsagambu, a medicinal plant) as the area suffered from soil erosion, pollution and poaching of animals.

The Court concluded that it was the duty of the State to protect and improve the environment, forests and wildlife of the country as per Article 48A of the Constitution of India following which it also underlined the fundamental duty towards the environment of each individual under Article 58A(g).                                                                                                                                                                                                                                                                                                                                        Accordingly, the bench disposed of the PIL with following directions:

  1. To remove all the permanent structures from Bugyals.
  2. To constitute the Eco-Development Committees.
  3. To restrict the number of tourists to 200 visiting the alpine meadows.
  4. To ban overnight stay in the Alpine.
  5. The commercial grazing of cattle was banned and only the local shepherds alone would be permitted to graze their cattle on the Bugyals by restricting the number of cattle.
  6. To conduct systematic survey of its flora.
  7. Every forest division should have a herbarium of important medicinal, rare, threatened and botanically interesting plants for reference and done only through government/public sector, as recommended by the experts.

[Aali-Bedini-Bagzi Bugyal Sanrakshan Samiti v. State of Uttarakhand, 2018 SCC OnLine Utt 760, order dated 21-08-2018]

Case BriefsHigh Courts

Delhi High Court: The 2-Judge Bench comprising of S. Ravindra Bhat and S.P. Garg JJ., directed the constitution of an efficient cell and advanced software for land management policies after a newspaper report against the Delhi Development Authority (DDA) instigated suo motu proceedings.

The ongoing case had two major issues, the justification and details of the land acquisition prior to 1961 and the DDA not being in possession of the acquired land. It was highlighted that Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 lead to a lapse of the acquisition of land if neither possession nor compensation was done.

In these circumstances, the Court has recommended the DDA, the Government of NCT of Delhi and the Central Government to create an independent cell with statutory powers under the DDA to frame effective land management policies and also to ensure an effective software, cater real time need of the agencies, and to evolve the appropriate task force, to clear encroachments in a time bound and systematic manner. The Court has also directed the DDA to submit an action taken report within 10 weeks, after consultation with other parties and also to submit a list on 19-01-2018 to ensure that consequential action has been taken. [Court on its Own Motion v. NCT of Delhi, 2017 SCC OnLine Del 11751, decided on 17.11.2017]

Case BriefsSupreme Court

Supreme Court: Dealing with the matter where it was contended that a Sale Notification issued under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) was in infraction of Section 187 of the Tripura Land Revenue and Land Reforms Act, 1960, the Court held that the dominant legislation being the Parliamentary legislation, the provisions of the Tripura Act of 1960 would be invalid. It is the provisions of the Act of 2002, which do not contain any embargo on the category of persons to whom mortgaged property can be sold by the bank for realisation of its dues that will prevail over the provisions contained in Section 187 of the Tripura Act of 1960.

Applying the test of ‘dominant legislation’ on the encroachment in the present case, the Court, explaining the difference between the Central and State Law, said that the provisions of the Act of 2002 enable the bank to take possession of any property where a security interest has been created in its favour, specifically, Section 13 of the 2002 Act enables the bank to take possession of and sell such property to any person to realise its dues. The purchaser of such property acquires a clear title to the property sold, subject to compliance with the requirements prescribed. Section 187 of the Tripura Act of 1960, on the other hand, prohibits the bank from transferring the property which has been mortgaged by a member of a scheduled tribe to any person other than a member of a scheduled tribe.

The bench of Ranjan Gogoi and Abhay Manohar Sapre, JJ, hence, said that sale of mortgaged property by a bank is an inseparable and integral part of the business of banking. So long there did not exist any parallel Central Act dealing with sale of secured assets and referable to Entry 45 of List I, the State Act, including Section 187, operated validly. However, the moment Parliament stepped in by enacting such a law traceable to Entry 45 and dealing exclusively with activities relating to sale of secured assets, the State law, to the extent that it is inconsistent with the Act of 2002, must give way. [UCO Bank v. Dipak Debbarma, 2016 SCC OnLine SC 1391, decided on 25.11.2016]

Case BriefsSupreme Court

Supreme Court: Taking note of the very disturbing fact of encroachments on defence land, the Court said that the legislative policy and the provisions of the relating to encroachments should be strictly implemented. Prompt action has to be taken by the concerned authorities for removal of the illegally constructed buildings in the Cantonment area and the Cantonment Boards should be vigilant and ensure that no further encroachments are made on defence land.

Section 34 (1) (e) of the the Cantonments Act, 2006, enacted the existing Act of 1924 after taking into consideration the recommendations made by the Standing Committee of Parliament on Defence which called for tackling the encroachments on defence lands situated all over the country, provides for removal of a member of the Board who aids or abets encroachment and the illegal constructions on the defence land.

The bench of Anil R. Dave and L. Nageswara Rao, JJ was dealing with the question regarding the right to vote of persons living in illegally constructed buildings in a Cantonment area. The Court held that the Cantonment Board is not authorized to include the encroachers in the voters list.

It was contended that the Rule 10 (3) of the Cantonment Electoral Rules, 2007 was in conflict with Section 28 of the Cantonments Act, 2006 Section 28 which states that a person who is not less than 18 years of age and who has resided in a Cantonment area for a period of not less than six months immediately preceding the qualifying date shall be entitled to be enrolled as an elector.

Explaining the meaning of the word ‘resident’ as used in Section 28 of the Act, the Court held that the scope of word ‘resident’ as defined in the Cantonment Act, 2006 is completely different from that of ‘ordinarily resident’ as defined in the Representation of the People Act, 1950. The restrictive definition of a ‘resident’ in the Act is peculiar to the Cantonments whereas the definition of ‘ordinarily resident’ is very wide. Even if a person is residing in an unauthorised structure he will be entitled to be included in the electoral rolls under the Representation of the People Act which is not the case with the Cantonment Act.

The Court, hence, rejected the contention and said that Rule 10 (3) of the 2007 Rules is not in conflict with Section 28 of the Act. On the other hand, Rule 10 (3) is strictly in conformity with Section 28 making only persons living in houses with numbers eligible to vote as it is clearly from the language of Rule 10(3) that the persons who are living in illegally constructed houses which are not assigned any number will not be entitled for inclusion in the electoral roll to be prepared in accordance with Rule 10 (3) of the 2007 Rules.  [Sunil Kumar Kori v. Gopal Das Kabra, 2016 SCC OnLine SC 993, decided on 27.09.2016]

Case BriefsHigh Courts

Allahabad High Court: Deciding on the matter of whether construction of a religious structure (Temple) and attempting to encroach upon the public land is a fundamental or legal right, the division bench comprising of Sudhir Agarwal and Rakesh Srivastava, JJ gave directions to the Uttar Pradesh Government and other officials, that no religious structure in any form, shall be allowed/ permitted to be raised on public roads and to remove any religious structure that were raised in public places from January, 2011 and to be shifted to Private Lands donated by beneficiaries.

The petitioners who were 19 in number filed an appeal stating that in the garb of constructing religious structures, like Temple, Mazar, Samadhi, Mosque, Gurudwara, Church etc., public roads (including highways), streets, pathways etc. are encroached upon, obstructing or creating hindrance in smooth movement of public including vehicular traffic. The Court observed that, “There is no fundamental or legal right to encroach upon a public road (including highway), street etc. and raise construction of any kind thereon. These unauthorized and illegal activities cause hindrance and interruption in free flow and movement of traffic including foot walkers. Every citizen has a fundamental right of movement and this cannot be allowed to be infringed by a few violators in public and apathy of State authorities.”

Therefore, the Court while disposing off the writ petition gave following directions:

  • Uttar Pradesh Government and other officials to ensure that no religious structure in any form, whatsoever, shall be allowed/ permitted to be raised on public road, street, pathway, lane etc. which is part and parcel of road etc. and belong to State.
  • If any such structure is existing and has been raised in the last five years, the same shall be removed forthwith and a compliance report shall be submitted by Collectors etc. of concerned Districts to Principal Secretary/Secretary of concerned department shall submit a comprehensive report to the Chief Secretary within next two months.
  • If any such religious structure has been raised encroaching upon public road (including highways), street, lane etc., before 01.01.2011, a Scheme shall be worked out and executed to shift the same to a private land offered by beneficiaries of such religious structures or persons responsible for its management or to remove it, within six months.
  • If any encroachment is made on roads, lane etc. after the judgment is passed on 10.06.2016 then the Deputy Collectors and Superintendent of Police of that area shall be responsible. The disobedience of the same shall be treated a deliberate and intentional disobedience to lower down authority of Court and would amount to criminal contempt.
  • District Magistrate directed to take immediate steps and take appropriate action within two weeks

 [Lavkush v. State of Uttar Pradesh,2016 SCC OnLine All 394 decided on 10.06.2016]

Case BriefsHigh Courts

Himachal Pradesh High Court: Taking suo motu cognizance of the news item in the Hindi daily ‘Amar Ujala’ in its edition dated 30.10. 2014 which highlighted an incident where a fire brigade took more than 1 hour 15 minutes to cover the distance from one corner of the Lower Bazar to the other corner due to the illegal encroachments by unscrupulous encroachers, the division bench of Rajiv Sharma and Tarlok Singh Chauhan, JJ issued stringent directions to be applied to the entire Municipal area of Shimla.

The Court also stressed on the fact that majority of Himachal Pradesh falls in Seismic Zone-V and the remaining in region-IV and yet this fact has failed to shake the authorities in Shimla out of their slumber and if any such calamity occurs, the quake-prone area cannot avert a Himalayan tragedy of the kind that has killed thousands and caused massive destruction in Nepal and asked the authorities to keep a check on illegal constructions. The Court drew further attention to the fact that after years of haphazard development and environmental degradation-destroying activities, both by the Municipal Corporation and the residents, there is a ray of hope in the prospects of Shimla getting the “UNESCO World Heritage Site Tag” but can the city get the status in the current scenario where the encroachers are encroaching without any impunity.

Expressing concern and disappointment over the fact that even after repeated directions passed by this Court more than three decades back in Yoginder Lal Sharma v. Municipal Corporation, Shimla 1983 (12) ILR 457 and thereafter in Neelam Sharma’s case, the same has not had the desired effect upon the encroachers, the Court directed that (i) no shopkeeper/hawker throughout Shimla irrespective of its locality would be permitted to display his goods on the drains and the sides of the streets, (ii) no shop will be permitted to have overhanging projections including collapseable tarpaulin, (iii) no unauthorized hawkers shall be permitted to sit outside a shop by encroaching upon the public drain or sell their goods in any bazaar in Municipal area of Shimla (iv) the Municipal Corporation shall strictly implement the provisions of Section 227 of the Himachal Pradesh Municipal Corporation Act, 1994 and also relevant byelaws and in case of first three violations, fine as envisaged under the aforesaid provisions shall be levied but, in case of fourth default, the licence to run the shop shall be suspended for 1 month and in case of another default for another 6 months and in case o further default, then his licence shall be permanently revoked (v) till the building byelaws are not framed, the Municipal Corporation will be authorized to have the electricity and water connections of the illegal structures disconnected and any instruction issued on behalf of the Corporation to the HPSEBL or the IPH will be imperative and mandatory (vi) the Chief Fire Officer shall carry out an unscheduled and unannounced mock-drill every month where the fire brigade shall be made to pass through the entire length and breadth of the Lower Bazar and any hindrance in its movement shall be dismantled and demolished there and then at the spot. Certain other important directions were also issued by the Court. Court on its own motion v. State of H.P., 2015 SCC OnLine HP 1173, decided on 22.05.2015