Supreme Court Orders Status Quo In Plea Challenging HP HC Judgment Which Set Aside Power Of Govt To Regularise Encroachments

The Supreme Court on Friday ordered status quo in a petition challenging the decision of the Himachal Pradesh High Court, which declared Section 163-A of the Himachal Pradesh Land Revenue Act, 1952, as unconstitutional.The bench of Justice Vikram Nath and Justice Sandeep Mehta issued notice in the matter.S.163A empowered the State Government to frame rules for the regularisation of encroachments on government land. The division bench of the High Court observed that the impugned provision is a 'legislation for a class of dishonest persons' which seeks to regularize all illegal encroachments, and thus, is violative of Article 14 of the Constitution.The division bench added that the provision in question defeats the very purpose for which the Statute was created and violates the very edifice of the Principal Statute (specifically S. 163 of the 1952 Act), which provides for a mechanism for removing encroachment from government land.The main contention of the petitioner before the Supreme Court was that the High Court applied the Public Trust doctrine to invalidate a legislative provision; however, the doctrine is only applicable to set aside a wrong executive action. The plea explains : " The public trust doctrine can only be resorted to invalidate executive action. The same has no application to legislation. A legislation can only be struck down in case it violates fundamental rights or if the legislature has no competence to enact the legislation." The plea also adds that the High Court has given several directions which were not even prayed for in the PIL filed before it. It states : "To the best of the knowledge of the Petitioner, the only prayers in the PIL were with regard to the validity of Section 163-A and the 2002 rules notified in furtherance of the same. The High Court erred in passing sweeping directions without any pleadings and without there being any prayers in respect of the directions that were ultimately passed." The plea contends that the directions no. 2, 3,6,7 and 4 and 8 passed by the High Court are of grave concern. It reasons : "Directions 2, 3, 6 and 7 pertain to legislative/executive functions. The High Court has directed the state to amend certain statutes/provisions that deal with encroachments. Such directions encroach on the legislative sphere and are contrary to several judgments of this Hon'ble Court.""Direction 4 encroaches on the judicial functions of other Courts/tribunals and also violates the principles of natural justice. The High Court has erred in passing a blanket order vacating the stay(s) granted in other cases which were not before it. This direction was also passed without hearing the parties in whose favour these stay orders were passed." "Direction 8 encroaches into the legislative domain and violates basic principles of judicial discipline. The High Court has erred in directing that the plea of adverse possession will not be available in certain cases. It is respectfully submitted that a plea of adverse possession or any other plea cannot be foreclosed in this manner. The application of the same must be decided by the Court based on the facts of each case." The High Court, in the impugned order, has passed the following directions : (1) Section 163-A of H.P. Land Revenue Act is manifestly arbitrary and unconstitutional and as a consequence thereof, Section 163-A of H.P. Land Revenue Act and Rules framed thereunder (Section 163-A) of the said Act are quashed;(2) Taking into account the magnitude of encroachments made on Government land in the State of Himachal Pradesh, the State Government should consider amendment in the law pertaining to “criminal trespass” by bringing it in consonance with the State amendments as have been made in the State of Uttar Pradesh, Karnataka and Orissa;(3) The respondents are directed to ensure removal of encroachment on the Government land, in accordance with law, by initiating suitable proceedings against encroachers and taking such proceedings to its logical end as expeditiously as possible preferably on or before 28th February, 2026.(4) Any stay/protection granted against removal of encroachment for pendency of this petition or any other ground including the ground with reference to Rule/Draft Rules notified by the Government or regularization of encroachment including Draft Rules notified in the year 2017 shall stand vacated and any such order is declared ineffective and unenforceable against the proceedings pending or to be withheld for removal of encroachment from the Government land.(5) Directions issued in CWPIL Nos. 9 of 2015 and 17 of 2014 in para 35 of judgment dated 8.1.2015 are extended for removal of encroachment from all type of Government land/premises including the proceedings initiated or to be initiated under H.P. Public Premises Act and/or Section 163 of H.P. Land Revenue Act as well.(6) The respondent/State is also directed to make suitable changes in law by amending relevant Act and Rules appropriately to assign ...

Supreme Court Orders Status Quo In Plea Challenging HP HC Judgment Which Set Aside Power Of Govt To Regularise Encroachments

Anmol Kaur Bawa

Tags