Tarlok Singh Chauhan JUDGMENT
Tarlok Singh Chauhan, J.
1. Since common question of law and facts arise for consideration in these petitions, therefore, these petitions were taken up together for hearing and are being disposed of by way of this common judgment.
2. Both the petitioners have been found to have encroached upon the Government land by both the authorities below while exercising power under the H.P. Public Premises and Land (Eviction and Rent Recovery) Act, 1971 (for short the 'Act') and have now by medium of this writ petition prayed for setting aside of the orders so passed.
3. The brief facts as are necessary for adjudication of these petitions are that the respondent No. 2 filed complaints against the petitioners under Section 4(1) of the Act before the competent authority i.e. Collector-cum-Divisional Forest Officer, Kullu on the allegation that the petitioner Gulab Dass had encroached upon the Government land measuring 1-56-90 hectares i.e. khasra Nos. 79/2/1 measuring 01-01-16 hectares and 79/2/2 measuring 0-55-74 hectares in Muhal Prini by planting apple trees. Whereas petitioner Budhi Singh had encroached upon the land measuring 1-05-07 hectares in the same Muhal comprising Khasra Nos. 203, 206, 207 and 992.
4. The main defence raised by the petitioners before the authorities below was that they had become owners by adverse possession. However, this plea was negated by both the authorities below compelling the petitioners to file the instant petitions.
5. The plea of adverse possession has been given up before this Court in these petitions and the petitioners have now assailed the orders passed by the authorities below mainly on the ground that these authorities have not taken into consideration the pleadings and have not properly appreciated the evidence led by the parties. They have also failed to take into consideration that FIR registered in the case had resulted in the acquittal of the petitioners and that there was a serious dispute with respect to the demarcation and identification of the property. It is further averred that the lands have vested upon the petitioners on the basis of 'Khangi Taksim' (family partition) on the basis of which they considered themselves to be owners in possession of the same.
6. The respondents had filed their reply wherein it is stated that both the authorities below have acted and decided these cases strictly in accordance with the prescribed procedure. It is further averred that the petitioners were granted more than ample opportunities to prove their case which they failed to do and now that the petitioners are rank-encroachers and have no right or title over the lands encroached by them and therefore these writ petitions be dismissed.
7. It is also averred that the orders passed by the authorities below are in conformity and in compliance to the orders passed by this Court, from time to time, in CWPIL No. 17 of 2014 titled as Court on its own motion vs. State of H.P. whereby the respondents have been directed to remove all kinds of encroachments over the forest and other lands.
We have heard learned counsel for the parties and have also carefully gone through the material placed on record.
8. At the outset, we may observe that the main ground taken by the petitioners before the authorities below was with respect to adverse possession and none of the grounds as sought to be raised in these writ petitions, were taken before the authorities below save and except the ground that no demarcation had been effected on the spot in presence of the petitioners and the report and the site plan were wrong and contrary to the factual position on the spot.
9. Learned counsel for the petitioners has vehemently argued that no demarcation was conducted in the presence of the petitioners and, therefore, no reliance could have been placed on this demarcation and the consequential report prepared on the basis of such demarcation. We are not at all impressed by this argument for the simple reason that in case the petitioners were serious about such contention, then nothing prevented them from seeking a fresh demarcation either before the Collector or appellate authority or even before this Court. Having failed to do so, the petitioners now cannot turn around and question the same.
10. Apart from the above, it would be noticed that the only contention put-forth in appeal before the Divisional Commissioner was with respect to adverse possession, which plea, as observed earlier, has been given up before this Court. No arguments whatsoever were addressed before the Divisional Commissioner complaining about the demarcation and, therefore, such plea at this stage is clearly an after thought and cannot therefore be permitted to be agitated before this Court.
11. The Court is dealing with public property and wherein the public has interest and it is more than settled that private interest must yield to public interest.
12. It has to be remembered that the right and title of the State cannot be permitted to be destroyed so as to give an upper hand to the encroachers, unauthorized occupants or land grabbers as held by the Hon'ble Supreme Court in Mandal Revenue Officer vs. Goundla Venkaiah and another MANU/SC/0026/2010 : (2010) 2 SCC 461, the relevant observations wherein read as under:
"47. In this context, it is necessary to remember that it is well neigh impossible for the State and its instrumentalities including the local authorities to keep every day vigilance/watch over vast tracts of open land owned by them or of which they are the public trustees. No amount of vigil can stop encroachments and unauthorised occupation of public land by unscrupulous elements, who act like vultures to grab such land, raise illegal constructions and, at times, succeeded in manipulating the State apparatus for getting their occupation/possession and construction regularized. It is our considered view that where an encroacher, illegal occupant or land grabber of public property raises a plea that he has perfected title by adverse possession, the Court is duty bound to act with greater seriousness, care and circumspection. Any laxity in this regard may result in destruction of right/title of the State to immovable property and give upper hand to the encroachers, unauthorised occupants or land grabbers.
48. In State of Rajasthan v. Harphool Singh (Dead) through Lrs. MANU/SC/0348/2000 : 2000 (5) SCC 652, this Court considered the question whether the respondents had acquired title by adverse possession over the suit land situated at Nohar-Bhadra Road at Nohar within the State of Rajasthan. The suit filed by the respondent against his threatened dispossession was decreed by the trial Court with the finding that he had acquired title by adverse possession. The first and second appeals preferred by the State Government were dismissed by the lower appellate Court and the High Court respectively. This Court reversed the judgments and decrees of the courts below as also of the High Court and held that the plaintiff-respondent could not substantiate his claim of perfection of title by adverse possession. Some of the observations made on the issue of acquisition of title by adverse possession which have bearing on this case are extracted below: (SCC p. 660, para 12)
"12. So far as the question of perfection of title by adverse possession and that too in respect of public property is concerned, the question requires to be considered more seriously and effectively for the reason that it ultimately involves destruction of right/title of the State to immovable property and conferring upon a third-party encroacher title where he had none. The decision in P. Lakshmi Reddy v. L. Lakshmi Reddy adverted to the ordinary classical requirement -- that it should be nec vi, nec clam, nec precario -- that is the possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor. It was also observed therein that whatever may be the animus or intention of a person wanting to acquire title by adverse possession, his adverse possession cannot commence until he obtains actual possession with the required animus."
49. A somewhat similar view was expressed in A.A. Gopalakrishnan v. Cochin Devaswom Board MANU/SC/7819/2007 : 2007 (7) SCC 482. While adverting to the need for protecting the properties of deities, temples and Devaswom Boards, the Court observed as under: (SCC p. 486, para 10)
"10. The properties of deities, temples and Devaswom Boards, require to be protected and safeguarded by their trustees/archakas/shebaits/employees. Instances are many where persons entrusted with the duty of managing and safeguarding the properties of temples, deities and Devaswom Boards have usurped and misappropriated such properties by setting up false claims of ownership or tenancy, or adverse possession. This is possible only with the passive or active collusion of the authorities concerned. Such acts of "fences eating the crops" should be dealt with sternly. The Government, members or trustees of boards/trusts, and devotees should be vigilant to prevent any such usurpation or encroachment. It is also the duty of courts to protect and safeguard the properties of religious and charitable institutions from wrongful claims or misappropriation."
13. The petitioners are rank-encroachers and after making large scale encroachments have protracted the litigation and thereby turned the same into a fruitful industry, by succeeding in protecting their illegal possession and reaping the usufruct out of the land, which as per their own admission comprises of apple orchard. This illegal possession cannot be permitted to continue. It is the duty of the court to see that such wrongdoers are discouraged at every stage and even if they have succeeded in prolonging the litigation, then they must suffer the costs of all these years and also bear the expenses of such unwanted and otherwise avoidable litigation.
14. The very object and purpose of encroaching upon the forest land is only to make a quick buck by illegal means. Therefore, there is no reason why the encroachers who have cut down the forests to pave way for apple orchards should not be made to cough up the extra buck which they have earned over a long period of time.
15. People have long referred to the trees as 'Earth's lungs' as they play a crucial role in our existence, consuming large quantities of carbon dioxide and producing oxygen which enables us to breathe. Apart from providing oxygen, they also cleanse the air and improve its quality, control climate, protect soil and support vast varieties of wildlife. It is universally accepted that deforestation is major contributing factors of climate change and that is why it is so important to protect trees and secure our natural landscapes for future generations.
16. The 'sustainable development theory' recognizes and avows 'precautionary principle' and 'polluter pays principle'. The State is having the rights flowing from their position as parents patriae. The forest conservation and eco-management are two inevitable obligations which are to be respected when the theory of 'sustainable development' is put into operation. What is required is the insistence for 'gun and guard' approach in day-to-day supervisory functions of the Government.
17. The 1992 Rio Declaration on environment and development has been adopted by India and principle 13 thereof provides:
"The States shall develop national law regarding liability and compensation for the victims of pollution and other environmental damage. States shall also cooperate in an expeditious and more determined manner to develop further international law regarding liability and compensation for adverse effects of environmental damage caused by activities within their jurisdiction or control to areas beyond their jurisdiction."
18. In view of the above declaration, the State is under obligation to safeguard and compensate not only the victims of pollution but also liable to compensate for the adverse effects of an environmental damage. The 'Polluters Pays Principle' as interpreted by the Hon'ble Supreme Court means that the absolute liability for harm to the environment extends not only to compensate the victims of pollution but also the cost of restoring the environmental degradation.
19. Remediation of the damaged environment is part of the process of 'Sustainable development' and as such polluter is liable to pay the cost not only to the individual sufferers but even to the society as a whole, towards the cost of reversing the damaged ecology.
20. The 'Polluter Pays Principle' can appropriately be applied to the cases of encroachers because it is the injury caused by each of the occupier/encroacher to the pristine forest wealth and is, therefore, liable to compensate for the same.
21. It is more than settled that the forest land cannot be put to use for any non-forest purpose but for the facts already set out, it would reveal that there would be environmental degradation in using the forest for non-forest purposes by the occupier/encroacher affecting the environmental equilibrium. This position is apodictic and unassailable.
22. The activities of the occupiers/encroachers in the forest land for the last so many years has had its antagonistic effectiveness in the environmental premise. Therefore, all those responsible for environmental degradation cannot be exculpated.
23. It is therefore the duty of this court to neutralize any unjust enrichment and undeserved gain made by the litigants only on account of keeping the litigation alive.
24. In Indian Council for Enviro-Legal-Action vs. Union of India and others MANU/SC/0837/2011 : (2011) 8 SCC 161, the Hon'ble Supreme Court held that conduct of the parties in pursuing the litigation is to be taken into consideration and it was held as follows:-
"197. The other aspect which has been dealt with in great details is to neutralize any unjust enrichment and undeserved gain made by the litigants. While adjudicating, the courts must keep the following principles in view:
1. It is the bounden duty and obligation of the court to neutralize any unjust enrichment and undeserved gain made by any party by invoking the jurisdiction of the court.
2. When a party applies and gets a stay or injunction from the court, it is always at the risk and responsibility of the party applying. An order of stay cannot be presumed to be conferment of additional right upon the litigating party.
3. Unscrupulous litigants be prevented from taking undue advantage by invoking jurisdiction of the Court.
4. A person in wrongful possession should not only be removed from that place as early as possible but be compelled to pay for wrongful use of that premises fine, penalty and costs. Any leniency would seriously affect the credibility of the judicial system.
5. No litigant can derive benefit from the mere pendency of a case in a court of law.
6. A party cannot be allowed to take any benefit of his own wrongs.
7. Litigation should not be permitted to turn into a fruitful industry so that the unscrupulous litigants are encouraged to invoke the jurisdiction of the court.
8. The institution of litigation cannot be permitted to confer any advantage on a party by delayed action of courts."
25. It is not only high time, but it is necessary to arrest and curb immediately such unlawful activity of encroachment over the government lands as the public order is adversely affected by such unlawful activity. It is probably on account of the high returns from agricultural and horticultural pursuits carried out over the encroached lands that unscrupulous persons have occupied without any semblance of right, vast extents of land belonging to the Government. Therefore, unless all such cases of illegal encroachments are dealt with sternly and swiftly, the evil cannot subside and social injustice will continue to be perpetrated with impunity.
26. It is evidently clear from the aforesaid discussion that these petitions not only sans merit, but the intent behind filing these petitions is also not bona fide as the only endeavour of the petitioners appears to prolong the litigation so as to enable them to reap the benefits from the vast extents of government land illegally encroached by them and thereby convert this litigation into a fruitful industry.
27. Accordingly, both these petitions are dismissed. The pending applications, if any, also stand disposed of. A copy of this judgment be placed on the file of CWP No. 986 of 2016.
28. However, before parting, it needs to be clarified that the eviction to be carried out by the respondents shall be at the cost of the petitioner(s) and this decision shall also not come in the way of the respondents in claiming any other relief against the petitioner(s) including mesne profits etc. before the competent authority or Court of law.
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