JOGINDER AND ANOTHER versus STATE OF HARYANA AND OTHERS on 5 February 2021

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 10.11.2020 passed by the High Court of Punjab andHaryana at Chandigarh in Civil Writ Petition No. 17869 of 2020, bywhich the High Court has dismissed the said writ petition preferred bythe petitioners herein, the original writ petitioners have preferred theFpresent special leave petition.

2. That the petitioners who are the residents of Village Sarsad,Tehsil Gohana, District Sonepat encroached upon the panchayat landand constructed the houses. It is not in dispute that the lands on whichthe petitioners have constructed the houses vest in the Gram Panchayat.GThat in the year 2000, the Government of Haryana framed a policyregarding sale of panchayat land in unauthorised possession inside outsidethe Abadi Deh. The Government of Haryana also amended the PunjabVillage Common Lands (Regulation) Rules, 1964 (hereinafter referredto as the ‘1964 Rules’) and issued a notification dated 1.8.2001 in thisregard. Thereafter, in the year 2008, Rule 12(4) was incorporated in theH

JOGINDER AND ANOTHER v. STATE OF HARYANA ANDOTHERS [M.R. SHAH, J.]

1964 Rules in terms of the notification dated 03.01.2008, which authorisesGram Panchayat to sell its non-cultivable land in Shamlat Deh to theinhabitants of the village who have constructed their houses on or before31.03.2000, subject to fulfilment of the conditions mentioned in Rule12(4) of the 1964 Rules. Rule 12(4) of the 1964 Rules, which is relevantin the present case, reads as under:

“Rule 12(1) A Panchayat may, with the previous approval of theState Government, sell land in shamlat deh vested in it under theAct for—

(4) The Gram Panchayat may with the prior approval of the StateGovernment, sell its non-cultivable land in shamlat deh to theinhabitants of the village who have constructed their houses on orbefore the 31st March, 2000, not resulting in any obstruction tothe traffic and passer-by, along with open space up to 25% of theconstructed area or an appurtenant area up to a maximum of 200square yards at not less than collector rate [floor rate or marketrate, whichever is higher].”

Thus, as per Rule 12(4) of the 1964 Rules, the construction of thehouse on the panchayat land must have been put on or before 31.03.2000.It must be a non-cultivable land; does not result in any obstruction to thetraffic and passer-by and the illegal occupation/constructed area shallbe up to a maximum of 200 square yards and then only the same can beregularised/sold.

3. The petitioners herein submitted the application before thecompetent authority along with the resolution of the concerned panchayatand requested to sell the lands occupied by them illegally andunauthorizedly, in exercise of powers under Rule 12, more particularlyRule 12(4) of the 1964 Rules. After giving an opportunity of personalhearing, the competent authority, i.e., Deputy Commissioner, Sonepat onperusal of the record and the site report, which was verified by visitingthe relevant place and having found that the petitioners are in illegaloccupation of the area admeasuring more than 200 square yards, i.e,757.37 square yards in case of the petitioner-Joginder and 239.48 squareyards in case of the petitioner-Karamveer, rejected the said application.The order passed by the competent authority rejecting the application ofthe petitioners came to be challenged by the petitioners before the HighCourt. By the impugned judgment and order, the Division Bench of the A

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AHigh Court has dismissed the said writ petition. While dismissing thewrit petition, the High Court has also considered the decision of thisCourt in the case of Jagpal Singh v. State of Punjab, reported in(2011) 11 SCC 396, by which this Court directed to all the StateGovernments in the country that they should prepare schemes for evictionof illegal/unauthorized occupants of Gram Sabha/Gram Panchayat/BPoramboke/Shamlat land and these must be restored to the Gram Sabha/Gram Panchayat for the common use of the villagers of the village.

4. Feeling aggrieved and dissatisfied with the impugned judgmentand order passed by the High Court, the original writ petitioners havepreferred the present special leave petition.C

5. Learned counsel appearing on behalf of the petitioners hasvehemently submitted that both, the competent authority as well as theHigh Court have misread and misinterpreted Rule 12(4) of the 1964Rules. It is vehemently submitted that only in a case where the constructedarea is more than 200 square yards, bar under Rule 12(4) of the 1964DRules shall be applicable. Therefore, according to the learned counselfor the petitioners, even if the total area of the unauthorised occupationis more than 200 square yards, i.e., constructed area plus the open spacearea, the same is required to be regularised in exercise of powers underRule 12(4). It is submitted that in the present case, as such, there was noEspecific finding by the competent authority as to how much was thearea over which the houses of the petitioners have been constructedand how much was the open space area. It is submitted that Rule 12(4)does not specify or limit any area with regard to houses constructed andit only creates a limit of 25% open space of the constructed area up to amaximum of 200 square yards. It is submitted that therefore the casesFof the petitioners squarely fall within Rule 12(4) of the 1964 Rules. It issubmitted that in the present case, even the Gram Panchayat also passeda resolution which was placed for consideration before the competentauthority.

5.1 It is further submitted that even the High Court has materiallyGerred in relying upon the decision of this Court in the case ofJagpal Singh (supra). It is submitted that in the case of JagpalSingh (supra), this Court did not consider Rule 12(4) of the 1964Rules.

6. We have heard the learned counsel appearing on behalf of theHpetitioners at length.

7. It is to be noted that the competent authority after giving anopportunity of personal hearing to the writ petitioners and on perusal ofthe record and the site report which was verified by visiting the relevantplace found that petitioner no.1 – Joginder was in illegal occupation ofthe area admeasuring 757.37 square yards and petitioner no.2 -Karamveerwas found to be in illegal occupation of the area admeasuring 239.48square yards, rejected the prayer of the petitioners to sell the land inexercise of powers under Rule 12(4) of the 1964 Rules. The competentauthority has specifically observed and held that the conditions mentionedin Rule 12(4) of the 1964 Rules have not been satisfied. The submissionon behalf of the petitioners, noted hereinabove, that the cap of 200 squareyards shall be with respect to constructed area only and not to openspace or an appurtenant area has no substance and cannot be accepted.On a careful reading of Rule 12(4) of the 1964 Rules, it is apparent thatthe illegal occupation of the panchayat land can be regularised providedthe area of the illegal occupation is up to a maximum of 200 squareyards. It includes the constructed area, open space up to 25% of theconstructed area or appurtenant area. Therefore, on a fair reading ofRule 12(4), in case of an illegal occupation of the area up to a maximumof 200 square yards including the constructed area, appurtenant areaand open space area can be regularised and sold at not less than collectorrate (floor rate or market rate, whichever is higher). The idea behindkeeping the cap of 200 square yards may be that the small area of thelands occupied illegally can be regularised/sold. If the submission onbehalf of the petitioners is accepted, in that case, it may happen thatsomebody has put up a construction on 195 square yards and is in illegaloccupation of 500 square yards area, in that case, though he hasencroached upon the total area of about 700 square yards, he shall beentitled to purchase the land under Rule 12(4) of the 1964 Rules, whichis not the intention of Rule 12(4). Therefore, the competent authority aswell as the High Court both are justified in taking the view that as therespective petitioners are in illegal occupation of the area more than therequired area up to a maximum of 200 square yards, they are not entitledto the benefit of Rule 12(4).

8. It is required to be noted that the persons in illegal occupationof the Government Land/Panchayat Land cannot, as a matter of right,claim regularization. Regularization of the illegal occupation of theGovernment Land/Panchayat Land can only be as per the policy of theState Government and the conditions stipulated in the Rules. If it is found AB

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Athat the conditions stipulated for regularisation have not been fulfilled,such persons in illegal occupation of the Government Land/PanchayatLand are not entitled to regularization. As observed by this Court in therecent decision in the case of State of Odisha v. Bichitrananda Das,reported in (2020) 12 SCC 649, an applicant who seeks the benefit ofthe policy must comply with its terms. In the present case, the policyBwhich was formulated by the State Government which culminated inRule 12(4) of the 1964 Rules specifically contained a stipulation to theeffect that the illegal/unauthorised occupation up to a maximum of 200square yards only can be sold on regularisation and on fulfilment ofother conditions mentioned in Rule 12(4) of the 1964 Rules. The petitionersCare found to be in illegal occupation of the area of more than 200 squareyards. Therefore, one of the conditions mentioned in Rule 12(4) is notsatisfied and therefore both, the competent authority as well as the HighCourt have rightly held that the petitioners are not entitled to the benefitof the provisions of Rule 12(4) of the 1964 Rules. We are in completeagreement with the view taken by the High Court as well as the competentDauthority.

9. At this stage, the decision of this Court in the case of JagpalSingh (supra) is required to be referred to. In the said decision, thisCourt had come down heavily upon such trespassers who have illegallyencroached upon on the Gram Sabha/Gram Panchayat Land by usingEmuscle powers/money powers and in collusion with the officials andeven with the Gram Panchayat. In the said decision, this Court hasobserved that “such kind of blatant illegalities must not be condoned”. Itis further observed that “even if there is a construction the same isrequired to be removed and the possession of the land must be handed Fback to the Gram Panchayat”. It is further observed that “regularizingsuch illegalities must not be permitted because it is Gram Sabha landwhich must be kept for the common use of the villagers of the village”.Thereafter, this Court has issued the following directions:

“23. Before parting with this case, we give directions to all theGState Governments in the country that they should prepareschemes for eviction of illegal/unauthorized occupants of GramSabha/Gram Panchayat/Poramboke/Shamlat land and these mustbe restored to the Gram Sabha/Gram Panchayat for the commonuse of villagers of the village. For 1 this purpose the ChiefSecretaries of all State Governments/Union Territories in IndiaH

JOGINDER AND ANOTHER v. STATE OF HARYANA ANDOTHERS [M.R. SHAH, J.]

are directed to do the needful, taking the help of other seniorofficers of the Governments. The said scheme should provide forthe speedy eviction of such illegal occupant, after giving him ashow cause notice and a brief hearing. Long duration of suchillegal occupation or huge expenditure in making constructionsthereon or political connections must not be treated as ajustification for condoning this illegal act or for regularizing theillegal possession. Regularization should only be permitted inexceptional cases e.g. where lease has been granted under someGovernment notification to landless labourers or members ofScheduled Castes/Scheduled Tribes, or where there is already aschool, dispensary or other public utility on the land.”

In view of the above also, the prayer of the petitioners forregularization of their illegal occupation of the panchayat land cannot beaccepted.

10. In view of the above and for the reasons stated hereinabove,the present special leave petition deserves to be dismissed and isaccordingly dismissed.

Ankit Gyan

Appeal dismissed.

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