Illegal encroachments: Acknowledgment of 'human angle' doesn’t give free ride to encroachers

Supreme Court on Thursday stayed the Uttarakhand High Court order of evicting illegal occupants of land claimed to be owned by the Indian Railways in Haldwani city of Uttarakhand. In its order delivered on 20 December last year, while rejecting the ownership claim of the occupants, the Uttarakhand High Court had ordered immediate eviction after giving a week’s notice to the occupants. On Thursday, while staying the high court order the apex court made it clear that it is staying only the directions of eviction and not the proceedings under the Public Premises Act (PPA). PPA is an act that provides for the eviction of unauthorized occupants from public premises and for certain incidental matters. A bench comprising Justices Sanjay Kishan Kaul and Abhay S Oka said that a “workable arrangement is necessary to segregate people who may have rights/no rights coupled with schemes of rehabilitation which already exists while recognizing the need of the railways". The bench also directed that no more construction/development on the land can take place. So, what the apex court order means is that the sudden eviction of occupants has to stop, while the proceedings initiated under PPA can continue. The authorities have to find a way of rehabilitating the occupants before eviction and as there is no final word on the claim of ownership by the apex court so it might require fresh examination. It can be very well argued that the sudden eviction of 50,000 people can cause an immense problem and needs an empathetic reconsideration. But the fact is that it was in 2016 that the first eviction order was issued. It was in 2013 that a writ petition was filed in the Uttarakhand High Court. The petition has argued that: RCC Gola Bridge at Haldwani, had collapsed on 25 July 2008, and another part of it, had further collapsed on 20 September 2008, and the reason for it was alleged to be the unabated illegal mining activities, which were being carried by the residents, who had unauthorisedly occupied the government land, including the land lying in the river bed of river Gola, as well as upon the railways land, due to which, the pillars, which were supporting the bridge had weakened, resulting into its collapse and a consequential loss of the state exchequer. The division bench deciding the PIL on 9 November 2016 issued specific directions to the divisional railway manager, (DRM) North Eastern Railway to remove the encroachments which were made on the railway line and the surrounding areas of the railway land, within a period of 10 weeks from the date of the order. However, as highlighted by the high court in its 20 December judgment, the state government itself filed a review petition challenging the high court order. The 20 December judgment also highlights the fact that the state government did not provide any assistance in removing unauthorized occupants. Dwelling on the reason for inaction, the judgment notes: Owing to the certain most reckoned political shield, which was then being provided by the then Ruling party for its political gains to the unauthorised occupants, just to secure its vote bank, the state itself has filed a review petition, for no subsisting and valid reasons, being Review Petition No. 6 of 2017, seeking review of the judgment dated 9 November 2016, which too was dismissed by the Division Bench vide its judgment dated 10 January 2017. Following the initial judgment of 2016 of Uttarakhand High Court ordering eviction and dismissal of the review petition, several special leave petitions (SLP) was filed before the apex court which on 18 January 2017, allowed all the individual persons, who were affected by the judgment of 9 November 2016 to file an appropriate application before the division bench of the high court of Uttarakhand on or before 13 February 2017. Several petitions were filed which were clubbed together, all parties including interveners, as well as by the counsel representing the railways and the petitioner of the PIL were heard and then the judgment was passed. On the ownership claim the Uttarakhand High Court gave detailed reasoning why it cannot accept the ownership claims of the petitioners. According to the court, the rights claimed by the occupants are based upon the office memorandum dated 17 May 1907, which would not confer any right even according to the case of the respondents, as it is only a document, which is only for the purposes of the executive management of the property, and it refers only that the management of the property. The court also highlighted the fact that the office memorandum dated 17 May, 1907, itself restraints any execution of a deed of sale or lease of the nazul property, all lease deeds, according to the own case of the respondents would be in violation of the office memorandum dated 17 May, 1907, as relied by them. The judgments enlist several other reasons for denying ownership or occupancy rights which can be read here in the detailed judgment. Now, as the Supreme Court stays the Uttarakhand High Court judgment it entails two aspects for any discussion. Does the stay mean that Supreme Court has acknowledged the ownership rights of the occupants, the answer is no. The court had stayed the high court order because the sudden uprooting of the 50,000 people would cause much pain and misery and the court felt that as the human angle is involved rehabilitation of the evicted people should precede eviction. This brings us to the second aspect which is whether rehabilitation of the evicted illegal occupants from government property is necessary. Or for that matter does the occupation of government land for a long period can entitle a person to regularisation? Well, several high court and Supreme Court judgments speak against it. In February 2021, passing a judgment in a case where two persons have encroached upon a land belonging to a local panchayat the apex court bench of justices DY Chandrachud and MR Shah held, “The persons in illegal occupation of the Government Land/Panchayat Land cannot, as a matter of right, claim regularization. Regularization of the illegal occupation of the Government Land/Panchayat Land can only be as per the policy of the State Government and the conditions stipulated in the Rules. If it is found that the conditions stipulated for regularisation have not been fulfilled, such persons in illegal occupation of the Government Land/Panchayat Land are not entitled to regularization." It can be argued that this was a case of two persons encroaching upon the land and not 50,000 people were to be rendered homeless with the apex court order. In normal course, no court will take the magnitude of illegal activities as a reason for considering an act to be legal or not. Similarly, in 2010 the apex court set aside a judgment by Andhra Pradesh High Court which had granted title to the man who illegally occupied government land for 50 years considering that authorities had not taken any action for eviction. A bench comprising Justice GS Singhvi and Justice AK Ganguly said: No amount of vigil can stop encroachments and unauthorised 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 regularised. What the court further observed is of utmost importance. It said, “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 the destruction of right/title of the state to immovable property and give upper hand to the encroachers, unauthorised occupants or land grabbers. In June 2021, the Supreme Court ordered the clearing of the Khori area of Aravali Forest in the Faridabad district which was encroached upon by migrants from different states. While rejecting a plea by the Haryana State government to review its order, the apex court made a strict observation as it said, “We want our (forest) land vacant”. The implementation of the Supreme Court order meant that 6,000 houses in Khori were demolished. It will be largely agreed upon that if a large number of people are uprooted suddenly it will cause unspeakable miseries to them. There should be a balancing act of taking both the legal redressal of the issue and acknowledging the human angle which the Supreme Court did in this case by staying the eviction order of the High Court but not the PPA proceedings. However, it should also be kept in mind that in this balancing act of acknowledging the “human angle” and legality, the encroachers should not assume they can have a free ride. Supreme Court lawyer Ashish Goel makes an important observation on the Supreme Court judgment. He says, “As a lawyer, I have a problem with sweeping eviction orders of this kind coming from a high court. And that too in a public interest litigation, which is aimed at advancing the cause of Part III of the Constitution, not curtail it. The order does not carefully examine the “public interest” component in the matter and skips asking relevant questions on maintainability and locus that ideally a constitutional court should ask before passing an order that would directly and immediately affect the life and livelihood of thousands of persons. The key issue is whether these people are legally entitled to the land or not. The issue is now before the Supreme Court and the matter is sub judice. The order had far-reaching consequences on invaluable constitutional freedoms and the Supreme Court’s stay does not come to me as a surprise. Regardless of whether there is a right to enjoy the land or not, the eviction process must conform to constitutional imperatives. The Supreme Court has earlier held that even a trespasser cannot be evicted without following the due process of law. These individuals have a host of fundamental rights that cannot be taken away by the state just like that – in carrying out the eviction, the state should be mindful of these rights and guarantees”. On being asked if he thinks in any way these encroachments can be justified and can the rehabilitation be made a prerequisite for evicting illegal occupancy, he adds, “Of course, rehabilitation or resettlement cannot be claimed as a matter of right. It is also true that while humanitarian considerations are at play, individual interests must yield to the larger public interest. But, having said that, it is important to see if the state government has any rehabilitation or resettlement policy and if these individuals may be given some benefit under that policy in the form of an alternate accommodation subject to whatever conditions that may be imposed.” In this debate about whether the encroachers have the right to remedies like rehabilitation or not, a larger and more important point is missed. These encroachments do not happen in a short time or without the awareness of the authorities. But, as highlighted in the Uttarakhand High Court judgment they are allowed for political gains. It gets a lot of political dividends for those in power, but the long-term result is misery for the marginalized and poor and material loss for the state. The writer is a journalist and researcher based in Delhi. He has worked with The Indian Express, Firstpost, Governance Now, and Indic Collective. He writes on Law, Governance and Politics. Views expressed are personal. 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