ISMAILBHAI I. KANSARA (D) THROUGH LR versus STATE OF GUJARAT & ORS. on 13 July 2021

Conclusion

ISMAILBHAI I. KANSARA (D) THROUGH LRv.

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 allotmentof any property acquired – Appellant-encroacher on evacueeproperty served with eviction notice u/s. 19(2)(b) – Writ petition bythe appellant, challenging the eviction order – Dismissed by theHigh Court holding that it is an evacuee property, thus, the appellanthas no right over it and is not entitled to claim regularization of hispossession – Upheld by the Division Bench – On appeal, held:Encroacher does not have any right of regularization of an evacueeland in the presence of a displaced person entitled to allotment inorder to satisfy the objective of the Act – Evacuee land can beallotted only to a displaced person alone – Allotment to non-displacedperson can be considered only after all the displaced persons havebeen settled – On facts, perusal of the Circular dated 20.06.1978shows that an encroacher can be considered for regularization ofhis possession only if there is no displaced person in terms of clauseIII – In terms of clause III, the Chief Settlement Commissioner allottedthe land to Respondent No. 4 since he had balance verified claim –Appellant was ordered to be evicted being an unauthorized occupantof evacuee land – Thus, the clause to allot evacuee land toencroacher in the government policy dated 20.6.1978 is beyondthe scheme and purpose of the Act – However, if any allotment hasbeen made to an encroacher and had attained finality, the samewill not be re-opened – Possession of the land was taken over bythe Government on 24.01.2014 – As such, the claim for restorationof possession by an encroacher, is wholly untenable.

Dismissing the appeal, the Court

HELD:1.1 The appellant filed the writ petition soon afterthe eviction order was served upon him, wherein he madereference to the previous notice. He had further stated that he

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Aappeared before the Collector and also made an application forpurchase of land in question. Though, he has stated that theeviction notice was dropped, no such order has been producedor referred to in the written submission filed. The stand is thathis purchase application could not be considered on account ofthe pending writ petition. Thus, the appellant had received showBcause notice for unauthorized possession of an evacuee property.The submission that eviction order was passed without notice isfactually incorrect. [Para 6][43-E-G]

1.2 The relief claimed by the appellant in the writ petitionwas to quash and set aside the eviction order. The appellant hasCnot sought any relief qua allotment or regularization of hispossession of the land in question. Therefore, substantially, theclaim of the appellant before the High Court was to examine asto whether the order of eviction passed was suffering from anyillegality or irregularity which could have warranted interferenceDin the writ proceedings. Since the claim of the appellant waslimited only to challenge the eviction order and the fact that thepossession of the appellant was not regularized before23.06.1992, therefore, there is no illegality in the eviction noticeissued against the appellant. Hence, in terms of Section 19 of theAct, the order of eviction passed cannot be said to be illegal orEinvalid. [Para 7][43-H; 44-A-C]

1.3 The appellant is in possession of a land meant fordisplaced person being an evacuee land, therefore, it is not thecircular dated 08.01.1980 which is in respect of encroachmenton public land that would be applicable but the Circular ofF20.6.1978 under which the claim of the appellant for regularizationof his possession alone can be examined. A perusal of the Circulardated 20.6.1978 would show that an encroacher can be consideredfor regularization of his possession only if there is no displacedperson in terms of clause III. In terms of clause III, the ChiefGSettlement Commissioner allotted the land to Respondent No.4 on 12.10.1990 since he had balance verified claim. The appellantwas also ordered to be evicted being an unauthorized occupantof evacuee land. It cannot be said that the appellant was requiredto be heard before passing such an order as the appellant is notclaiming any right being a displaced person. Between theH

displaced person and a land encroacher, the displaced personhas 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 basisof government policy decision dated 20.06.1978, whichcontemplate that the allotment of the evacuee land shall be interms of Section 20 of the Act. The evacuee land has to be allottedto a displaced person as it forms part of the compensation pool interms of Section 14 which can be allotted in terms of Section 20of the Act. The evacuee land can be allotted only to a displacedperson alone. The allotment to non-displaced person can beconsidered only after all the displaced person have been settled.Therefore, the clause to allot evacuee land to encroacher in thepolicy dated 20.6.1978 is beyond the scheme and purpose of theAct. However, if any allotment has been made to an encroacherand had attained finality, the same will not be re-opened. Thus,an encroacher does not have any right of regularization of anevacuee land in the presence of a displaced person entitled toallotment in order to satisfy the objective of the Act. Thepossession of the land was taken over by the Government on24.01.2014. The claim of the appellant, for restoration ofpossession 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 653distinguished.Para 12

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2851of 2015.

From the Judgment and Order dated 10.03.2014 of the High Courtof Gujarat in Ahmedabad in Letters Patent Appeal No. 1362 of 2013.

Rauf Rahim, Anwar Sheikh, Ali Asghar Rahim, Advs. for theAppellant.

Pritesh Kapur, Sr. Adv., Aniruddha P. Mayee, Nikhil Goel, NaveenGoel, Vinay Mathew, Advs. for the Respondents.

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42SUPREME COURT REPORTS

[2021] 8 S.C.R.

AThe Judgment of the Court was delivered byHEMANT GUPTA, J.

1. The present appeal is preferred by an encroacher on an evacueeland measuring 0-14 acre-guntha of Survey No.191/2 at Godhara, Gujaratsince 1976 where he is running an auto garage named Bharat MotorBGarage since 1977. The Learned Single Bench dismissed the writ petitionof the appellant herein on 24.10.2013 challenging the eviction order dated23.6.1992. 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 underCSection 19(2)(b) of the Displaced Person (Compensation andRehabilitation) Act, 1954[1]. The appellant filed a writ petition in the HighCourt of Gujarat at Ahmedabad bearing Special Civil Application (SCA)No. 4700 of 1992 on 16.07.1992. Another SCA No.2940 of 1992 filed byone Srikant Devi prasad Joshi was heard alongwith SCA filed by the

Dappellant. Shri Joshi was claiming right over the property in question onthe basis of allotment made to him on 20.09.1972 as an enemy property[2].The land allotted to Shri Joshi was cancelled on 06.12.1974. The appealagainst the said order was dismissed on 15.07.1975. It is thereafter ShriJoshi filed SCA before the High Court which came to be dismissed on24.10.2013. The said order has attained finality qua Shri Joshi. LearnedESingle Bench decidedthe SCA filed by the appellant by not consideringhim to be encroacher but observing that it is an evacuee property andthusthe appellant has no right over it. While examiningthe notice of theeviction and claim of regularization of possession, the Court held as under:

“The challenge in this petition is to the notice of eviction datedF23.6.1992 and this notice indicted that the same was issued onaccount of property being treated as evacuee property and likelyto be disposed of in accordance therewith and therefore, whenthis Court has not accepted the petition of original petitioners andnot disturbed the stand of the State and authorities qua propertyGbeing evacuee property, then, the entire petition of present petitionerwill be required to be viewed from that angle only. The claim forregularization if at all is there, then, the same shall take secondfiddle and as could be seen from the aforesaid discussion, this 1 Hereinafter referred to as the ‘Act’H2 Enemy Property Act, 1968

ISMAILBHAI I. KANSARA (D) THROUGH LR v. STATE OFGUJARAT & ORS. [HEMANT GUPTA, J.]

Court has not accepted the contention of the petitioner qua propertybeing evacuee property and hence, the basic premise on whichthe property could have been has not been for regularization doesnot exist in favour of the petitioner and therefore, decisions citedat bar accompanying the written submission, in my view, wouldbe of no avail to the petitioner and therefore, the Court need notdetain itself elaborately on the aspect of regularization.”

3. In an intra Court appeal, an order was passed on 20.01.2014remanding both the SCA’s before the learned Single Bench. But on anapplication filed, the application and the Letters Patent Appeal weredismissed on 10.03.2014.

4. Before this Court, Mr. Rauf Rahim argued that no opportunitywas granted to the appellant before the eviction order was passed on23.06.1992. The appellant had averred in the SCA filed that he is entitledto regularization of his possession on the basis of the governmentresolution dated 8.1.1980.

5. The argument of learned counsel for the appellant before thiscourt is based upon the policy dated 20.6.1978 for allotment of evacueeland to encroachers and the resolution dated 8.1.1980 in respect ofallotment of other public land to encroachers. The appellant as anencroacher is covered by either or both of the policies, therefore, isentitled to claim regularization of his possession.

6. We have considered the arguments raised and find no merit inthe present appeal. The appellant filed the writ petition soon after theeviction 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 hadfurther stated that he appeared before the Collector and also made anapplication for purchase of land in question. Though, he has stated thatthe eviction notice was dropped, no such order has been produced orreferred to in the written submission filed. The stand is that his purchaseapplication could not be considered on account of the pending writ petition.Thus, the appellant had received show cause notice for unauthorizedpossession of an evacuee property. Therefore, the argument that evictionorder was passed without notice is factually incorrect.

7. The relief claimed by the appellant in the writ petition was toquash and set aside the eviction order. The appellant has not sought anyrelief qua allotment or regularization of his possession of the land in AB

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Aquestion. Therefore, substantially, the claim of the appellant before theHigh Court was to examine as to whether the order of eviction passedon 23.06.1992 was suffering from any illegality or irregularity whichcould have warranted interference in the writ proceedings. Since theclaim of the appellant was limited only to challenge the eviction orderand the fact that the possession of the appellant was not regularizedBbefore 23.06.1992, therefore, we do not find any illegality in the evictionnotice issued against the appellant. Hence, in terms of Section 19 of theAct, the order of eviction passed cannot be said to be illegal or invalid.

8. Alternatively, we have also examined the claim of the appellantfor regularization of his possession over the land in question.TheCGovernment Resolution dated 08.01.1980 is in respect of encroachmenton public land. The appellant is in possession of a land meant for displacedperson being an evacuee land, therefore, it is not the circular dated08.01.1980 that would be applicable but the Circular of 20.6.1978 underwhich the claim of the appellant for regularization of his possession aloneDcan be examined.

9. The Circular dated 20.06.1978 is to the effect that the disposalof the evacuee property shall be regulated in accordance with provisionscontained in Section 20 of the Act in the following manner:

“Dated the 20[th] June, 1978E

In supersession of the instructions issued in G.R.R.D. No. EVP-1073-R, dated the 1[st] March 1975 it is hereby directed that thevaluation and sale of remaining evacuee properties/lands whichare undisposed and are unclaimed by displaced persons, shouldbe dealt with in accordance with the provisions of the DisplacedFPersons (Compensation and Rehabilitation) Act, 1954 and theRules 1955 thereunder. The disposal of these properties shall beregulated in accordance with the provisions contained under Section20 of the Displaced Persons (Compensation & Rehabilitation)Act, 1954 and Rules 87 of the Displaced Persons (CompensationG& Rehabilitation) Rules 1955 by the Settlement Commissionersand Managing Officers appointed under the said Act in thefollowing manner:

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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 occupiedbut are open should be sold to displaced persons without auctionon payment of the present market value, preference being givento a displaced persons, who is (i) locally settled (ii) is in genuineneed of land/plot for rehabilitation and (iii) does not possess anyproperty either in his name or in the name of his family membersand, if he is a claimant displaced person, he has unsatisfied claimof property left in Pakistan in his name or in the name of hisfamily members. ………

(IV) The encroachment of evacuee lands both agricultural andnon-agricultural which do not conflict with the Town Plan of thearea should be regulated by Charging occupancy price at penalrate of not less than two and half times the ordinary occupancyprice which should be fixed by the Collector and SettlementCommissioner’s alongwith fine and annual assessment etc., inthe manner as chargeable for regularization of encroachment ofState 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 landsand in G.R.R.D. No.8297/45 dated the 17[th] May 1950 for non-agricultural lands as amended from time to time. If theencroachment is a displaced persons, the encroachment may beregularized by recovering the single occupancy price which shouldbe fixed by the Collector and Settlement Commissioner and fineand annual assessment in the manner as chargeable as per theprovisions of section 61 of Bombay Land Revenue Code, 1879.”

10. A perusal of the said Circular would show that an encroachercan be considered for regularization of his possession only if there is nodisplaced person in terms of clause III. The said clause contemplatesthat the evacuee land, both agricultural and non-agricultural should besold to displaced person without auction on payment of present marketvalue. The preference is to be given to (1) a locally settled displacedperson, (2) is in genuine need of land/plotfor rehabilitation and (3) doesnot possess any property either in his name or in the name of his familymember.

11. In terms of such clause III, the Chief Settlement Commissionerallotted the land to Respondent No. 4 on 12.10.1990 inter alia for thereason that he has balance verified claim. The appellant was also ordered A

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Ato be evicted being an unauthorized occupant of evacuee land. We donot find any merit in the argument that the appellant was required to beheard before passing such an order as the appellant is not claiming anyright being a displaced person. Therefore, between the displaced personand a land encroacher, the displaced person has a priority and thus, wasrightly allotted land. In fact, this Court in Ramesh Parsram Malani v.BState of Telangana[3] held that, it is only after the displaced persons aresettled, 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 thattransfer of land to the State Government takes such transferredCland out of compensation pool. The land transferred to the StateGovernment continues to be part of compensation pool but it isrequired to be disposed of by the officers of the State who havebeen conferred the powers of the Managing Officer or of theSettlement Commissioner for the settlement of the displacedDpersons alone. It is only after the displaced persons are settled,the State Government may utilize the land for other purposes.”

(Emphasis Supplied)

(Emphasis Supplied)

12. The appellant relied upon the judgment in Ramesh ParsramMalani to contend that a displaced person has to file a claim beforeE30.06.1955.We do not find any merit in such argument. The referredcase was where a displaced person was an owner of 83.11 acres oflandin Pakistan which was verified by the Settlement Claim Officer. Anallotment of 40.4 standards acre was made prior to commencement ofthe Act. It is 13 years after the death of displaced person on 10.08.1988,Fthe legal heir sought allotment of the remaining verified claim of thedisplaced person as perennial source of allotment. The appellant cannottake help from that judgment, he having no claim of allotment to anevacuee land. The displaced person is claiming allotment on the basis ofgovernment policy decision dated 20.06.1978, which policy contemplatethat the allotment of the evacuee land shall be in terms of Section 20 ofGthe Act.

13. The displaced person- respondent No. 4 is claiming allotmenton the basis of government policy decision dated 20.06.1978. The evacueeland has to be allotted to a displaced person as it forms part of the H3 (2020) 11 SCC 653

compensation pool in terms of Section 14 of the Act which can be allottedin terms of Section 20 of the Act. The evacuee land can be allotted onlyto a displaced person alone. The allotment to non-displaced person canbe considered only after all the displaced person have been settled.Therefore, the clause to allot evacuee land to encroacher in the policydated 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 haveany right of regularization of an evacuee land in the presence of adisplaced person entitled to allotment in order to satisfy the objective ofthe Act.

14. It is stated that the possession of the land has been taken overby the Government on 24.01.2014. The claim of the appellant is now forrestoration of possession by an encroacher, which is wholly untenable inview of the above observations.

15. In view thereof, we do not find any merit in the present appealand the same is dismissed.

Nidhi Jain

Appeal dismissed.

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