ISMAILBHAI I. KANSARA (D) THROUGH LR versus STATE OF GUJARAT & ORS.
[2021] 8 S.C.R. 39, Supreme Court of India, 2021
Outcome: Dismissed (Dismissed)
Segment: Facts
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ISMAILBHAI I. KANSARA (D) THROUGH LR
v.
STATE OF GUJARAT & ORS.
(Civil Appeal No. 2851 of 2015)
JULY 13, 2021
[SANJAY KISHAN KAUL AND HEMANT GUPTA, JJ.]
Displaced Person (Compensation and Rehabilitation) Act,
1954: ss. 19(2)(b), 20 –  Power to vary or cancel leases or allotment
of any property acquired – Appellant-encroacher on evacuee
property served with eviction notice u/s. 19(2)(b) – Writ petition by
the appellant, challenging the eviction order – Dismissed by the
High Court holding that it is an evacuee property, thus, the appellant
has no right over it and is not entitled to claim regularization of his
possession – Upheld by the Division Bench – On appeal, held:
Encroacher does not have any right of regularization of an evacuee
land in the presence of a displaced person entitled to allotment in
order to satisfy the objective of the Act – Evacuee land can be
allotted only to a displaced person alone – Allotment to non-displaced
person can be considered only after all the displaced persons have
been settled – On facts, perusal of the Circular dated 20.06.1978
shows that an encroacher can be considered for regularization of
his possession only if there is no displaced person in terms of clause
III – In terms of clause III, the Chief Settlement Commissioner allotted
the land to Respondent No. 4 since he had balance verified claim –
Appellant was ordered to be evicted being an unauthorized occupant
of evacuee land – Thus, the clause to allot evacuee land
to
encroacher in the government policy dated 20.6.1978 is beyond
the scheme and purpose of the Act – However, if any allotment has
been made to an encroacher and had attained finality, the same
will not be re-opened – Possession of the land was taken over by
the Government on 24.01.2014 – As such, the claim for restoration
of possession by an encroacher, is wholly untenable.
Dismissing the appeal, the Court
HELD:1.1 The appellant filed the writ petition soon after
the eviction order was served upon him, wherein he made
reference to the previous notice. He had further stated that he
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SUPREME COURT REPORTS
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appeared before the Collector and also made an application for
purchase of land in question. Though, he has stated that the
eviction notice was dropped, no such order has been produced
or referred to in the written submission filed. The stand is that
his purchase application could not be considered on account of
the pending writ petition. Thus, the appellant had received show
cause notice for unauthorized possession of an evacuee property.
The submission that eviction order was passed without notice is
factually incorrect. [Para 6][43-E-G]
1.2 The relief claimed by the appellant in the writ petition
was to quash and set aside the eviction order. The appellant has
not sought any relief qua allotment or regularization of his
possession of the land in question. Therefore, substantially, the
claim of the appellant before the High Court was to examine as
to whether the order of eviction passed was suffering from any
illegality or irregularity which could have warranted interference
in the writ proceedings. Since the claim of the appellant was
limited only to challenge the eviction order and the fact that the
possession of the appellant was not regularized before
23.06.1992, therefore, there is no illegality in the eviction notice
issued against the appellant. Hence, in terms of Section 19 of the
Act, the order of eviction passed cannot be said to be illegal or
invalid. [Para 7][43-H; 44-A-C]
1.3 The appellant is in
possession of a land meant for
displaced person being an evacuee land, therefore, it is not the
circular dated 08.01.1980 which is in respect of encroachment
on public land that would be applicable but the Circular of
20.6.1978 under which the claim of the appellant for regularization
of his possession alone can be examined. A perusal of the Circular
dated 20.6.1978 would show that an encroacher can be considered
for regularization of his possession only if there is no displaced
person in terms of clause III. In terms of clause III, the Chief
Settlement Commissioner allotted the land to Respondent No.
4 on 12.10.1990 since he had balance verified claim. The appellant
was also ordered to be evicted being an unauthorized occupant
of evacuee land. It cannot be said that the appellant was required
to be heard before passing such an order as the appellant is not
claiming any right being a displaced person. Between the
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displaced person and a land encroacher, the displaced person
has a priority and thus, was rightly allotted land. [Para 8, 10-11][44-
C-D; 45-F, H; 46-A-B]
1.4 The respondent No. 4 is claiming allotment on the basis
of government policy decision dated 20.06.1978, which
contemplate that the allotment of the evacuee land shall be in
terms of Section 20 of the Act. The evacuee land has to be allotted
to a displaced person as it forms part of the compensation pool in
terms of Section 14 which can be allotted in terms of Section 20
of the Act. The evacuee land can be allotted only to a displaced
person alone. The allotment to non-displaced person can be
considered only after all the displaced person have been settled.
Therefore, the clause to allot evacuee land to encroacher in the
policy dated 20.6.1978 is beyond the scheme and purpose of the
Act. However, if any allotment has been made to an encroacher
and had attained finality, the same will not be re-opened. Thus,
an encroacher does not have any right of regularization of an
evacuee land in the presence of a displaced person entitled to
allotment in order to satisfy the objective of the Act. The
possession of the land was taken over by the Government on
24.01.2014. The claim of the appellant, for restoration of
possession by an encroacher, is wholly untenable. [Para 12-14][46-
F-H; 47-A-D]
Ramesh Parsram Malani v. State of Telangana (2020)
11 SCC 653 – distinguished.
Case Law Reference
(2020) 11 SCC 653
distinguished.
Para 12
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2851
of 2015.
From the Judgment and Order dated 10.03.2014 of the High Court
of Gujarat in Ahmedabad in Letters Patent Appeal No. 1362 of 2013.
Rauf Rahim, Anwar Sheikh, Ali Asghar Rahim, Advs. for the
Appellant.
Pritesh Kapur, Sr. Adv., Aniruddha P. Mayee, Nikhil Goel, Naveen
Goel, Vinay Mathew, Advs. for the Respondents.
ISMAILBHAI I. KANSARA (D) THROUGH LR v. STATE OF
GUJARAT & ORS.
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The Judgment of the Court was delivered by
HEMANT GUPTA, J.
1. The present appeal is preferred by an encroacher on an evacuee
land measuring 0-14 acre-guntha of Survey No.191/2 at Godhara, Gujarat
since 1976 where he is running an auto garage named Bharat Motor
Garage since 1977. The Learned Single Bench dismissed the writ petition
of the appellant herein on 24.10.2013 challenging the eviction order dated
23.6.1992. The order has been upheld by the learned Division Bench.
Still aggrieved, the appellant is before this Court.
2. The appellant was served with a notice on 23.6.1992 under
Section 19(2)(b) of the Displaced Person (Compensation and
Rehabilitation) Act, 19541. The appellant filed a writ petition in the High
Court of Gujarat at Ahmedabad bearing Special Civil Application (SCA)
No. 4700 of 1992 on 16.07.1992. Another SCA No.2940 of 1992 filed by
one Srikant Devi prasad Joshi was heard alongwith SCA filed by the
appellant. Shri Joshi was claiming right over the property in question on
the basis of allotment made to him on 20.09.1972 as an enemy property2.
The land allotted to Shri Joshi was cancelled on 06.12.1974. The appeal
against the said order was dismissed on 15.07.1975. It is thereafter Shri
Joshi filed SCA before the High Court which came to be dismissed on
24.10.2013. The said order has attained finality qua Shri Joshi. Learned
Single Bench decidedthe SCA filed by the appellant by not considering
him to
be encroacher but observing that it is an evacuee property and
thusthe appellant has no right over it. While examiningthe notice of the
eviction and claim of regularization of possession, the Court held as under:
“The challenge in  this petition is to the notice of eviction dated
23.6.1992 and this notice indicted that the same was issued on
account of property being treated as evacuee property and likely
to be disposed of in accordance therewith and therefore, when
this Court has not accepted the petition of original petitioners and
not disturbed the stand of the State and authorities qua property
being evacuee property, then, the entire petition of present petitioner
will be required to be viewed from that angle only. The claim for
regularization if at all is there, then, the same shall take second
fiddle and as could be seen from the aforesaid discussion, this
1 Hereinafter referred to as the ‘Act’
2 Enemy Property Act, 1968
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Court has not accepted the contention of the petitioner qua property
being evacuee property and hence, the basic premise on which
the property could have been has not been for regularization does
not exist in favour of the petitioner and therefore, decisions cited
at bar accompanying the written submission, in my view, would
be of no avail to the petitioner and therefore, the Court need not
detain itself elaborately on the aspect of regularization.”
3. In an intra Court appeal, an order was passed on 20.01.2014
remanding both the SCA’s before the learned Single Bench. But on an
application filed, the application and the Letters Patent Appeal were
dismissed on 10.03.2014.
4. Before this Court, Mr. Rauf Rahim argued that no opportunity
was granted to the appellant before the eviction order was passed on
23.06.1992. The appellant had averred in the SCA filed that he is entitled
to regularization of his possession on the basis of the government
resolution dated 8.1.1980.
5. The argument of learned counsel for the appellant before this
court is based upon the policy dated 20.6.1978 for allotment of evacuee
land to encroachers and the resolution dated 8.1.1980 in respect of
allotment of other public land to encroachers. The appellant as an
encroacher is covered by either or both of the policies, therefore, is
entitled to claim regularization of his possession.
6. We have considered the arguments raised and find no merit in
the present appeal. The appellant filed
the writ petition soon after the
eviction order dated 23.06.1992 was served upon him. In the writ petition,
the appellant had made reference to the notice dated 1.5.1989. He had
further stated that he appeared before the Collector and also made an
application for purchase of land in question. Though, he has stated that
the eviction notice was dropped, no such order has been produced or
referred to in the written submission filed. The stand is that his purchase
application could not be considered on account of the pending writ petition.
Thus, the appellant had received show cause notice for unauthorized
possession of an evacuee property. Therefore, the argument that eviction
order was passed without notice is factually incorrect.
7. The relief claimed by the appellant in the writ petition was to
quash and set aside the eviction order. The appellant has not sought any
relief qua allotment or regularization of his possession of the land in
ISMAILBHAI I. KANSARA (D) THROUGH LR v. STATE OF
GUJARAT & ORS. [HEMANT GUPTA, J.]
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question. Therefore, substantially, the claim of the appellant before the
High Court was to examine as to whether the order of eviction passed
on 23.06.1992 was suffering from any illegality or irregularity which
could have warranted interference in the writ proceedings. Since the
claim of the appellant was limited only to challenge the eviction order
and the fact that the possession of the appellant was not regularized
before 23.06.1992, therefore, we do not find any illegality in the eviction
notice issued against the appellant. Hence, in terms of Section 19 of the
Act, the order of eviction passed cannot be said to be illegal or invalid.
8. Alternatively, we have also examined the claim of the appellant
for regularization of his possession over the land in question.The
Government Resolution dated 08.01.1980 is in respect of encroachment
on public land. The appellant is in possession of a land meant for displaced
person being an evacuee land, therefore, it is not the circular dated
08.01.1980 that would be applicable but the Circular of 20.6.1978 under
which the claim of the appellant for regularization of his possession alone
can be examined.
9. The Circular dated 20.06.1978 is to the effect that the disposal
of the evacuee property shall be regulated in accordance with provisions
contained in Section 20 of the Act in the following manner:
“Dated the 20th June, 1978
In supersession of the instructions issued in
G.R.R.D. No. EVP-
1073-R, dated the 1st March 1975 it is hereby directed that the
valuation and sale of remaining evacuee properties/lands which
are undisposed and are unclaimed by displaced persons, should
be dealt with in accordance with the provisions of the Displaced
Persons (Compensation and Rehabilitation) Act, 1954 and the
Rules 1955 thereunder. The disposal of these properties shall be
regulated in accordance with the provisions contained under Section
20 of the Displaced Persons (Compensation & Rehabilitation)
Act, 1954 and Rules 87 of the Displaced Persons (Compensation
& Rehabilitation) Rules 1955 by the Settlement Commissioners
and Managing Officers appointed under the said Act in the
following manner:
(I)  XXX
(II) XXX
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(III) The evacuee lands both agricultural and non-agricultural,
which are not covered by item (i) and (ii) above are not occupied
but are open should be sold to displaced persons without auction
on payment of the present market value, preference being given
to a displaced persons, who is (i) locally settled (ii) is in genuine
need of land/plot for rehabilitation and (iii) does not possess any
property either in his name or in the name of his family members
and, if he is a claimant displaced person, he has unsatisfied claim
of property left in Pakistan in his name or in the name of his
family members. ………
(IV) The encroachment of evacuee lands both agricultural and
non-agricultural which do not conflict with the Town Plan of the
area should be regulated by Charging occupancy price at penal
rate of not less than two and half times the ordinary occupancy
price which should be fixed by the Collector and Settlement
Commissioner’s alongwith fine and annual assessment etc., in
the manner as chargeable for regularization of encroachment of
State lands as per instructions contained in item No.3 of G.R.R.D.
No. EG-71/1072/2735-L dated 25-7-1972 for agricultural lands
and in G.R.R.D. No.8297/45 dated the 17th May 1950 for non-
agricultural lands as amended from time to time. If the
encroachment is a displaced persons, the encroachment may be
regularized by recovering the single occupancy price which should
be fixed by the Collector and Settlement Commissioner and
fine
and annual assessment in the manner as chargeable as per the
provisions of section 61 of Bombay Land Revenue Code, 1879.”
10. A perusal of the said Circular would show that an encroacher
can be considered for regularization of his possession only if there is no
displaced person in terms of clause III. The said clause contemplates
that the evacuee land, both agricultural and non-agricultural should be
sold to displaced person without auction on payment of present market
value. The preference is to be given to (1) a locally settled displaced
person, (2) is in genuine need of land/plotfor rehabilitation and (3) does
not possess any property either in his name or in the name of his family
member.
11. In terms of such clause III, the Chief Settlement Commissioner
allotted the land to Respondent No.  4 on 12.10.1990 inter alia for the
reason that he has balance verified claim. The appellant was also ordered
ISMAILBHAI I. KANSARA (D) THROUGH LR v. STATE OF
GUJARAT & ORS. [HEMANT GUPTA, J.]
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to be evicted being an unauthorized occupant of evacuee land. We do
not find any merit in the argument that the appellant was required to be
heard before passing such an order as the appellant is not claiming any
right being a displaced person. Therefore, between the displaced person
and a land encroacher, the displaced person has a priority and thus, was
rightly allotted land. In fact, this Court in Ramesh Parsram Malani v.
State of Telangana3 held that, it is only after the displaced persons are
settled, the State Government may utilize the land for other purposes.
The Court held as under:
“32 However, we are unable to agree with the High Court that
transfer of land to the State Government takes such transferred
land out of compensation pool. The land transferred to the State
Government continues to be part of compensation pool but it is
required to be disposed of by the officers of the State who have
been conferred the powers of the Managing Officer or of the
Settlement Commissioner for the settlement of the displaced
persons alone. It is only after the displaced persons are settled,
the State Government may utilize the land for other purposes.”
(Emphasis Supplied)
12. The appellant relied upon the judgment in Ramesh Parsram
Malani to contend that a displaced person has to file a claim before
30.06.1955.We do not find any merit in such argument. The referred
case was where a displaced person was an owner of 83.11
acres of
landin Pakistan which was verified by the Settlement Claim Officer. An
allotment of 40.4 standards acre was made prior to commencement of
the Act. It is 13 years after the death of displaced person on 10.08.1988,
the legal heir sought allotment of the remaining verified claim of the
displaced person as perennial source of allotment. The appellant cannot
take help from that judgment, he having no claim of allotment to an
evacuee land. The displaced person is claiming allotment on the basis of
government policy decision dated 20.06.1978, which policy contemplate
that the allotment of the evacuee land shall be in terms of Section 20 of
the Act.
13. The displaced person- respondent No. 4 is claiming allotment
on the basis of government policy decision dated 20.06.1978. The evacuee
land has to be allotted to a displaced person as it forms part of the
3 (2020) 11 SCC 653
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compensation pool in terms of Section 14 of the Act which can be allotted
in terms of Section 20 of the Act. The evacuee land can be allotted only
to a displaced person alone. The allotment to non-displaced person can
be considered only after all the displaced person have been settled.
Therefore, the clause to allot evacuee land to encroacher in the policy
dated 20.6.1978 is beyond the scheme and purpose of the Act. However,
if any allotment has been made to an encroacher and had attained finality,
the same will not be re-opened. Therefore, an encroacher does not have
any right of regularization of an evacuee land in the presence of a
displaced person entitled to allotment in order to satisfy the objective of
the Act.
14. It is stated that the possession of the land has been taken over
by the Government on 24.01.2014. The claim of the appellant is now for
restoration of possession by an encroacher, which is wholly untenable in
view of the above observations.
15. In view thereof, we do not find any merit in the present appeal
and the same is dismissed.
Nidhi Jain
Appeal dismissed.
ISMAILBHAI I. KANSARA (D) THROUGH LR v. STATE OF
GUJARAT & ORS. [HEMANT GUPTA, J.]