Joginder vs The State Of Haryana on 5 February, 2021


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Supreme Court of India

Joginder vs The State Of Haryana on 5 February, 2021

Author: Hon’Ble Dr. Chandrachud

Bench: Hon’Ble Dr. Chandrachud, M.R. Shah

                                                        REPORTABLE
                                  IN THE SUPREME COURT OF INDIA
                             EXTRA­ORDINARY APPELLATE JURISDICTION
                         SPECIAL LEAVE PETITION (CIVIL) NO. 1829 OF 2021


          Joginder and another                               …Petitioners


                                      Versus


          State of Haryana and others                        …Respondents




                                           ORDER

M.R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned

judgment and order dated 10.11.2020 passed by the High Court

of Punjab and Haryana at Chandigarh in Civil Writ Petition No.

17869 of 2020, by which the High Court has dismissed the said
Signature Not Verified

writ petition preferred by the petitioners herein, the original writ
Digitally signed by
Sanjay Kumar
Date: 2021.02.05
15:05:30 IST
Reason:

petitioners have preferred the present special leave petition.

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2. That the petitioners who are the residents of Village Sarsad,

Tehsil Gohana, District Sonepat encroached upon the panchayat

land and constructed the houses. It is not in dispute that the

lands on which the petitioners have constructed the houses vest

in the Gram Panchayat. That in the year 2000, the Government

of Haryana framed a policy regarding sale of panchayat land in

unauthorised possession inside outside the Abadi Deh. The

Government of Haryana also amended the Punjab Village

Common Lands (Regulation) Rules, 1964 (hereinafter referred to

as the ‘1964 Rules’) and issued a notification dated 1.8.2001 in

this regard. Thereafter, in the year 2008, Rule 12(4) was

incorporated in the 1964 Rules in terms of the notification dated

03.01.2008, which authorises Gram Panchayat to sell its non­

cultivable land in Shamlat Deh to the inhabitants of the village

who have constructed their houses on or before 31.03.2000,

subject to fulfilment of the conditions mentioned in Rule 12(4) of

the 1964 Rules. Rule 12(4) of the 1964 Rules, which is relevant

in the present case, reads as under:

“Rule 12(1) A Panchayat may, with the previous approval of the
State Government, sell land in shamlat deh vested in it under the
Act for—
(4) The Gram Panchayat may with the prior approval of the
State Government, sell its non­cultivable land in shamlat deh to

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the inhabitants of the village who have constructed their houses on
or before the 31st March, 2000, not resulting in any obstruction to
the traffic and passer­by, along with open space up to 25% of the
constructed area or an appurtenant area up to a maximum of 200
square yards at not less than collector rate [floor rate or market
rate, whichever is higher].”

Thus, as per Rule 12(4) of the 1964 Rules, the construction of the

house on the panchayat land must have been put on or before

31.03.2000. It must be a non­cultivable land; does not result in

any obstruction to the traffic and passer­by and the illegal

occupation/constructed area shall be up to a maximum of 200

square yards and then only the same can be regularised/sold.

3. The petitioners herein submitted the application before the

competent authority along with the resolution of the concerned

panchayat and requested to sell the lands occupied by them

illegally and unauthorizedly, in exercise of powers under Rule 12,

more particularly Rule 12(4) of the 1964 Rules. After giving an

opportunity of personal hearing, the competent authority, i.e.,

Deputy Commissioner, Sonepat on perusal of the record and the

site report, which was verified by visiting the relevant place and

having found that the petitioners are in illegal occupation of the

area admeasuring more than 200 square yards, i.e, 757.37

square yards in case of the petitioner­Joginder and 239.48

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square yards in case of the petitioner­Karamveer, rejected the

said application. The order passed by the competent authority

rejecting the application of the petitioners came to be challenged

by the petitioners before the High Court. By the impugned

judgment and order, the Division Bench of the High Court has

dismissed the said writ petition. While dismissing the writ

petition, the High Court has also considered the decision of this

Court in the case of Jagpal Singh v. State of Punjab, reported in

(2011) 11 SCC 396, by which this Court directed to all the State

Governments in the country that they should prepare schemes

for eviction of illegal/unauthorized occupants of Gram

Sabha/Gram Panchayat/Poramboke/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

judgment and order passed by the High Court, the original writ

petitioners have preferred the present special leave petition.

5. Learned counsel appearing on behalf of the petitioners has

vehemently submitted that both, the competent authority as well

as the High Court have misread and misinterpreted Rule 12(4) of

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the 1964 Rules. It is vehemently submitted that only in a case

where the constructed area is more than 200 square yards, bar

under Rule 12(4) of the 1964 Rules shall be applicable.

Therefore, according to the learned counsel for the petitioners,

even if the total area of the unauthorised occupation is more than

200 square yards, i.e., constructed area plus the open space

area, the same is required to be regularised in exercise of powers

under Rule 12(4). It is submitted that in the present case, as

such, there was no specific finding by the competent authority as

to how much was the area over which the houses of the

petitioners have been constructed and 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 and it only

creates a limit of 25% open space of the constructed area up to a

maximum of 200 square yards. It is submitted that therefore the

cases of the petitioners squarely fall within Rule 12(4) of the 1964

Rules. It is submitted that in the present case, even the Gram

Panchayat also passed a resolution which was placed for

consideration before the competent authority.

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5.1 It is further submitted that even the High Court has

materially erred in relying upon the decision of this Court in the

case of Jagpal Singh (supra). It is submitted that in the case of

Jagpal Singh (supra), this Court did not consider Rule 12(4) of the

1964 Rules.

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

the petitioners at length.

7. It is to be noted that the competent authority after giving an

opportunity of personal hearing to the writ petitioners and on

perusal of the record and the site report which was verified by

visiting the relevant place found that petitioner no.1 – Joginder

was in illegal occupation of the area admeasuring 757.37 square

yards and petitioner no.2 ­Karamveer was found to be in illegal

occupation of the area admeasuring 239.48 square yards,

rejected the prayer of the petitioners to sell the land in exercise of

powers under Rule 12(4) of the 1964 Rules. The competent

authority has specifically observed and held that the conditions

mentioned in Rule 12(4) of the 1964 Rules have not been

satisfied. The submission on behalf of the petitioners, noted

hereinabove, that the cap of 200 square yards shall be with

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respect to constructed area only and not to open space 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

that the illegal occupation of the panchayat land can be

regularised provided the area of the illegal occupation is up to a

maximum of 200 square yards. It includes the constructed area,

open space up to 25% of the constructed area or appurtenant

area. Therefore, on a fair reading of Rule 12(4), in case of an

illegal occupation of the area up to a maximum of 200 square

yards including the constructed area, appurtenant area and open

space area can be regularised and sold at not less than collector

rate (floor rate or market rate, whichever is higher). The idea

behind keeping the cap of 200 square yards may be that the

small area of the lands occupied illegally can be regularised/sold.

If the submission on behalf of the petitioners is accepted, in that

case, it may happen that somebody has put up a construction on

195 square yards and is in illegal occupation of 500 square yards

area, in that case, though he has encroached upon the total area

of about 700 square yards, he shall be entitled to purchase the

land under Rule 12(4) of the 1964 Rules, which is not the

intention of Rule 12(4). Therefore, the competent authority as

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well as the High Court both are justified in taking the view that

as the respective petitioners are in illegal occupation of the area

more than the required area up to a maximum of 200 square

yards, they are not entitled to the benefit of Rule 12(4).

8. It is required to be noted that 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. As

observed by this Court in the recent decision in the case of State

of Odisha v. Bichitrananda Das, reported in (2020) 12 SCC 649,

an applicant who seeks the benefit of the policy must comply

with its terms. In the present case, the policy which was

formulated by the State Government which culminated in Rule

12(4) of the 1964 Rules specifically contained a stipulation to the

effect that the illegal/unauthorised occupation up to a maximum

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of 200 square yards only can be sold on regularisation and on

fulfilment of other conditions mentioned in Rule 12(4) of the 1964

Rules. The petitioners are found to be in illegal occupation of the

area of more than 200 square yards. Therefore, one of the

conditions mentioned in Rule 12(4) is not satisfied and therefore

both, the competent authority as well as the High Court have

rightly held that the petitioners are not entitled to the benefit of

the provisions of Rule 12(4) of the 1964 Rules. We are in

complete agreement with the view taken by the High Court as

well as the competent authority.

9. At this stage, the decision of this Court in the case of Jagpal

Singh (supra) is required to be referred to. In the said decision,

this Court had come down heavily upon such trespassers who

have illegally encroached upon on the Gram Sabha/Gram

Panchayat Land by using muscle powers/money powers and in

collusion with the officials and even with the Gram Panchayat.

In the said decision, this Court has observed that “such kind of

blatant illegalities must not be condoned”. It is further observed

that “even if there is a construction the same is required to be

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removed and the possession of the land must be handed back to

the Gram Panchayat”. It is further observed that “regularizing

such illegalities must not be permitted because it is Gram Sabha

land which 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 the
State Governments in the country that they should prepare
schemes for eviction of illegal/unauthorized occupants of Gram
Sabha/Gram Panchayat/Poramboke/Shamlat land and these
must be restored to the Gram Sabha/Gram Panchayat for the
common use of villagers of the village. For 1 this purpose the Chief
Secretaries of all State Governments/Union Territories in India are
directed to do the needful, taking the help of other senior officers of
the Governments. The said scheme should provide for the speedy
eviction of such illegal occupant, after giving him a show cause
notice and a brief hearing. Long duration of such illegal occupation
or huge expenditure in making constructions thereon or political
connections must not be treated as a justification for condoning
this illegal act or for regularizing the illegal possession.

Regularization should only be permitted in exceptional cases e.g.
where lease has been granted under some Government notification
to landless labourers or members of Scheduled Castes/Scheduled
Tribes, or where there is already a school, dispensary or other
public utility on the land.”

In view of the above also, the prayer of the petitioners for

regularization of their illegal occupation of the panchayat land

cannot be accepted.

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10. In view of the above and for the reasons stated hereinabove,

the present special leave petition deserves to be dismissed and is

accordingly dismissed.

…..……………………………………J.

                                [Dr. Dhananjaya Y Chandrachud]

New Delhi;                      ………………………………………..J.
February 05, 2021.              [M.R. Shah]




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