IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No. 4606/2010 alongwith CWPs No. 4607, 4608, 4614, 4615, 4616, 4617, 4618, 4621, 4628, 4629, 4637, 4638, 4639, 4640, 4642, 4643, 4646, 4647, 4648 & 4649 of 2010 Decided on: 12.8.2010. 1. CWP No. 4606/2010. Chet Ram. ...Petitioner. Versus State of Himachal Pradesh and another. ... Respondents 2. CWP No. 4607/2010. Manmohan Singh. ...Petitioner. Versus State of Himachal Pradesh and another. ... Respondents 3. CWP No. 4608/2010. Vijay Kumar and another. ...Petitioners. Versus State of Himachal Pradesh and another. ... Respondents 4. CWP No. 4614/2010. Rajinder Singh. ...Petitioner. Versus State of Himachal Pradesh and another. ... Respondents 5. CWP No. 4615/2010. Kaman Singh and another ...Petitioners. Versus State of Himachal Pradesh and another. ... Respondents 6. CWP No. 4616/2010. Jai Pal Singh. ...Petitioner. Versus State of Himachal Pradesh and another. ... Respondents 2 7. CWP No. 4617/2010. Baljeet Singh. ...Petitioner. Versus State of Himachal Pradesh and another. ... Respondents 8. CWP No. 4618/2010. Ashok Kumar. ...Petitioner. Versus State of Himachal Pradesh and another. ... Respondents 9. CWP No. 4621/2010. Shoba Devi. ...Petitioner. Versus State of Himachal Pradesh and another. ... Respondents 10. CWP No. 4628/2010. Kashmir Singh. ...Petitioner. Versus State of Himachal Pradesh and another. ... Respondents 11. CWP No. 4629/2010. Sujan Singh. ...Petitioner. Versus State of Himachal Pradesh and another. ... Respondents 12. CWP No. 4637/2010. Sonu. ...Petitioner. Versus State of Himachal Pradesh and another. ... Respondents 13. CWP No. 4638/2010. Bal Bhadur Singh. ...Petitioner. Versus State of Himachal Pradesh and another. ... Respondents 14. CWP No. 4639/2010. Gyan Chand Yashpal and another. ...Petitioners. Versus State of Himachal Pradesh and another. ... Respondents 15. CWP No. 4640/2010. Smt. Mayum Devi. ...Petitioner. Versus State of Himachal Pradesh and another. ... Respondents 3 16. CWP No. 4642/2010. Jia Lal. ...Petitioner. Versus State of Himachal Pradesh and another. ... Respondents 17. CWP No. 4643/2010. Baldev Singh and others. ...Petitioners. Versus State of Himachal Pradesh and another. ... Respondents 18. CWP No. 4646/2010. Yoginder Singh. ...Petitioner. Versus State of Himachal Pradesh and another. ... Respondents 19. CWP No. 4647/2010. Smt. Yangzam. ...Petitioner. Versus State of Himachal Pradesh and another. ... Respondents. 20. CWP No. 4648/2010. Sanjeev Kumar. ...Petitioner. Versus State of Himachal Pradesh and another. ... Respondents 21. CWP No. 4649/2010. Lucky. ...Petitioner. Versus State of Himachal Pradesh and another. ... Respondents. Coram The Hon’ble Mr. Justice Kurian Joseph, Chief Justice. The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 For the Petitioner(s) : Mr. Dalip K. Sharma, Advocate. (in all the petitions). For the Respondents: Mr. R.K. Bawa, Advocate General ( in all the petitions). with Mr. J.K. Verma, Dy. A.G. Whether the reporters of the local papers may be allowed to see the Judgment? 4 Justice Rajiv Sharma ( oral) Since common questions of law and facts are involved in all these petitions, the same are taken up together for hearing and are being disposed of by a common judgment. 2. Material facts necessary for the adjudication of these petitions are that it is evident that proceedings against the petitioners, either in the capacity of landlord or tenant, were initiated under the Himachal Pradesh Roadside Land Control Act, 1968 (hereinafter referred to as ‘the Act’ for brevity sake). In sequel to the proceedings initiated under the Act, the ejectment orders have been issued against the petitioners by the Field Kanungo on 23.7.2010 whereby they have been directed to demolish and vacate their shops alongwith their belongings on or before 5.8.2010. It will be apt to take note of the relevant sections of the Act. Section 2 (6), (7) and (10) defines “road”, “controlled area” and “scheduled road”. As per section 3 of the Act, the Government is authorized by notification in the official Gazette to declare any length or the whole of any road to be a “scheduled road” and the area up to a horizontal distance of five meters as prescribed from the edge of the road-land on either of such scheduled road to be a “controlled area”. National Highway No. 22 to Peo Road has been declared as “scheduled road” as per notification of the Public Works Department dated 19.7.1971. The premises in unauthorized occupation of petitioners also fall 5 on National Highway No. 22 and the provisions of the Act are applicable to them. 3. The Legislative Assembly of Himachal Pradesh has enacted an Act called “The Himachal Pradesh Road Infrastructure Protection Act, 2002 to provide for preventing of misuse, damage, unauthorized use and encroachment of the road infrastructure. The expression “road infrastructure” has been defined under section 2 (q). Section 3 prescribes prohibition of certain acts on road infrastructure. Section 6 provides for orders for control and prevention of prohibited activities under section 3. Himachal Pradesh Roadside Land Control Act, 1968 and the Himachal Pradesh Road Infrastructure Protection Act, 2002 have been enacted to ensure that no encroachment takes place within the controlled area or scheduled area as well as no damage is caused to road infrastructure. Evil of encroachment of public roads, including scheduled roads has reduced the size of roads and has impeded the smooth flow of traffic. The National Highway, in question, is a very vital link as far as National Security is concerned. There is a need by the State functionaries to see that there is no encroachment, in any form, at least, on this National Highway. 4. Their Lordships of the Hon’ble Supreme Court in Mandal Revenue Officer versus Goundla Venkaiah and another, (2010) 2 SCC 461 have held that it is impossible for the State and its instrumentalities including local authorities to keep everyday vigilance/watch over vast tracts of open land owned by 6 them or of which they are public trustees. No amount of vigil can stop encroachments and unauthorized occupation of public land by unscrupulous elements, who act like vultures to grab such land, raise illegal constructions and, at times, succeed in manipulating the State apparatus for getting their occupation/possession and construction regularized. Their Lordships have held 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 unauthorized 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. 52. In view of above discussion, we hold that the respondents miserably failed to establish that they had acquired title over the schedule land by adverse possession and the High Court was not at all justified in upsetting the orders passed by the Special Tribunal and Special Court.” 5. Their Lordships of the Hon’ble Supreme Court in R. Hanumaiah and another versus Secretary to Government of Karnataka, Revenue Department and others, (2010) 5 SCC 203 have held that many civil courts deal with suits for declaration of title 7 and injunction against the Government, in a casual manner, ignoring or overlooking the special features relating to government properties. Their Lordships have held as under: “20. Many civil courts deal with suits for declaration of title and injunction against government, in a casual manner, ignoring or overlooking the special features relating to government properties. Instances of such suits against government being routinely decreed, either ex parte or for want of proper contest, merely acting upon the oral assertions of plaintiffs or stray revenue entries are common. Whether the government contests the suit or not, before a suit for declaration of title against a government is decreed, the plaintiff should establish, either his title by producing the title deeds which satisfactorily trace title for a minimum period of thirty years prior to the date of the suit (except where title is claimed with reference to a grant or transfer by the government or a statutory development authority), or by establishing adverse possession for a period of more than thirty years. In such suits, courts cannot, ignoring the presumptions available in favour of the government, grant declaratory or injunctive decrees against the government by relying upon one of the principles underlying pleadings that plaint averments which are not denied or traversed are deemed to have been accepted or admitted. 21. A court should necessarily seek an answer to the following question, before it grants a decree declaring title against the government : whether the plaintiff has produced title deeds tracing the title for a period of more than thirty years; or whether the plaintiff has established his adverse possession to the knowledge of the government for a period of more than thirty years, so as to convert his possession into title. Incidental to that question, the court should also find out whether the plaintiff is recorded to be the owner or holder or occupant of the property in the revenue records or municipal records, for more than thirty years, and what is the nature of possession claimed by the plaintiff, if he is 8 in possession - authorized or unauthorized; permissive; casual and occasional; furtive and clandestine; open, continuous and hostile; deemed or implied (following a title). 22. Mere temporary use or occupation without the animus to claim ownership or mere use at sufferance will not be sufficient to create any right adverse to the Government. In order to oust or defeat the title of the government, a claimant has to establish a clear title which is superior to or better than the title of the government or establish perfection of title by adverse possession for a period of more than thirty years with the knowledge of the government. To claim adverse possession, the possession of the claimant must be actual, open and visible, hostile to the owner (and therefore necessarily with the knowledge of the owner) and continued during the entire period necessary to create a bar under the law of limitation. In short, it should be adequate in continuity, publicity and in extent. Mere vague or doubtful assertions that the claimant has been in adverse possession will not be sufficient. Unexplained stray or sporadic entries for a year or for a few years will not be sufficient and should be ignored. 23. As noticed above, many a time it is possible for a private citizen to get his name entered as the occupant of government land, with the help of collusive government servants. Only entries based on appropriate documents like grants, title deeds etc. or based upon actual verification of physical possession by an authority authorized to recognize such possession and make appropriate entries can be used against the government. By its very nature, a claim based on adverse possession requires clear and categorical pleadings and evidence, much more so, if it is against the government. Be that as it may.” 6. Confronted with such a situation, Mr. Dalip K. Sharma fairly submits that his clients shall vacate the premises in question on or before 15.10.2010 and in the meantime, they 9 shall make representation(s) to the State Government for the redressal of their grievances. The undertaking given by the learned counsel for the petitioners is accepted and they are directed to vacate the premises, in question, on or before 15.10.2010, with liberty reserved to them to approach the appropriate authority for the redressal of their grievances within a period of four weeks from today. In case the petitioners fail to vacate the premises, in question, it shall be open to the respondent-State to get the premises vacated after 15.10.2010 forcibly. 7. Accordingly, in view of above observations/directions, the petitions are disposed of with no order as to costs. (Justice Kurian Joseph), Chief Justice. (Justice Rajiv Sharma) Judge. 12.8.2010. *awasthi*