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Supreme Court of India
Ismailbhai I. Kansara(D) Th. Lr vs State Of Gujarat, Through The … on 13 July, 2021Author: Hemant Gupta
Bench: Sanjay Kishan Kaul, Hemant Gupta
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2851 OF 2015
ISMAILBHAI I. KANSARA (D) THROUGH LR …..APPELLANT(S)
VERSUS
STATE OF GUJARAT & ORS. …..RESPONDENT(S)
JUDGMENT
HEMANT GUPTA, J.
1. The present appeal is preferred by an encroacher on an evacuee
land measuring 0-14 acre-guntha of Survey No.191/2 at Godhara,
Gujarat since 1976 where he is running an auto garage named
Bharat Motor Garage since 1977. The Learned Single Bench
dismissed the writ petition of the appellant herein on 24.10.2013
challenging the eviction order dated 23.6.1992. 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 under Section
Signature Not Verified
19(2)(b) of the Displaced Person (Compensation and Rehabilitation)
Digitally signed by
Charanjeet kaur
Date: 2021.07.15
17:04:02 IST
Reason:
Act, 19541. The appellant filed a writ petition in the High Court of
1 Hereinafter referred to as the ‘Act’
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Gujarat at Ahmedabad bearing Special Civil Application (SCA) No.
4700 of 1992 on 16.07.1992. Another SCA No.2940 of 1992 filed by
one Srikant Deviprasad Joshi was heard along with SCA filed by the
appellant. Shri Joshi was claiming right over the property in
question on the basis of allotment made to him on 20.09.1972 as
an enemy property2. The land allotted to Shri Joshi was cancelled
on 06.12.1974. The appeal against the said order was dismissed on
15.07.1975. It is thereafter Shri Joshi filed SCA before the High
Court which came to be dismissed on 24.10.2013. The said order
has attained finality qua Shri Joshi. Learned Single Bench decided
the SCA filed by the appellant by not considering him to be
encroacher but observing that it is an evacuee property and thus
the appellant has no right over it. While examining the notice of
the eviction and claim of regularization of possession, the Court
held as under:
“The challenge in this petition is to the notice of eviction
dated 23.6.1992 and this notice indicted that the same was
issued on account of property being treated as evacuee
property and likely to be disposed of in accordance
therewith and therefore, when this Court has not accepted
the petition of original petitioners and not disturbed the
stand of the State and authorities qua property being
evacuee property, then, the entire petition of present
petitioner will be required to be viewed from that angle only.
The claim for regularization if at all is there, then, the same
shall take second fiddle and as could be seen from the
aforesaid discussion, this Court has not accepted the
contention of the petitioner qua property being evacuee
property and hence, the basic premise on which the
property could have been has not been for regularization
does not exist in favour of the petitioner and therefore,
decisions cited at bar accompanying the written submission,
in my view, would be of no avail to the petitioner and
2 Enemy Property Act, 1968
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therefore, the Court need not detain itself elaborately on the
aspect of regularization.”
3. In an intra Court appeal, an order was passed on 20.01.2014
remanding both the SCA’s before the learned Single Bench. But on
an application filed, the application and the Letters Patent Appeal
were dismissed on 10.03.2014.
4. Before this Court, Mr. Rauf Rahim argued that no opportunity was
granted to the appellant before the eviction order was passed on
23.06.1992. The appellant had averred in the SCA filed that he is
entitled to regularization of his possession on the basis of the
government resolution dated 8.1.1980.
5. The argument of learned counsel for the appellant before this court
is based upon the policy dated 20.6.1978 for allotment of evacuee
land to encroachers and the resolution dated 8.1.1980 in respect of
allotment of other public land to encroachers. The appellant as an
encroacher is covered by either or both of the policies, therefore, is
entitled to claim regularization of his possession.
6. We have considered the arguments raised and find no merit in the
present appeal. The appellant filed the writ petition soon after the
eviction 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 had further stated that he appeared before the
Collector and also made an application for purchase of land in
question. Though, he has stated that the eviction notice was
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dropped, no such order has been produced or referred to in the
written submission filed. The stand is that his purchase application
could not be considered on account of the pending writ petition.
Thus, the appellant had received show cause notice for
unauthorized possession of an evacuee property. Therefore, the
argument that eviction order was passed without notice is factually
incorrect.
7. The relief claimed by the appellant in the writ petition was to quash
and set aside the eviction order. The appellant has not sought any
relief qua allotment or regularization of his possession of the land
in question. Therefore, substantially, the claim of the appellant
before the High Court was to examine as to whether the order of
eviction passed on 23.06.1992 was suffering from any illegality or
irregularity which could have warranted interference in the writ
proceedings. Since the claim of the appellant was limited only to
challenge the eviction order and the fact that the possession of the
appellant was not regularized before 23.06.1992, therefore, we do
not find any illegality in the eviction notice issued against the
appellant. Hence, in terms of Section 19 of the Act, the order of
eviction passed cannot be said to be illegal or invalid.
8. Alternatively, we have also examined the claim of the appellant for
regularization of his possession over the land in question. The
Government Resolution dated 08.01.1980 is in respect of
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encroachment on public land. The appellant is in possession of a
land meant for displaced person being an evacuee land, therefore,
it is not the circular dated 08.01.1980 that would be applicable but
the Circular of 20.6.1978 under which the claim of the appellant for
regularization of his possession alone can be examined.
9. The Circular dated 20.06.1978 is to the effect that the disposal of
the evacuee property shall be regulated in accordance with
provisions contained in Section 20 of the Act in the following
manner:
“Dated the 20th June, 1978
In supersession of the instructions issued in G.R.R.D.
No. EVP-1073-R, dated the 1st March 1975 it is hereby
directed that the valuation and sale of remaining
evacuee properties/lands which are undisposed and
are unclaimed by displaced persons, should be dealt
with in accordance with the provisions of the Dis-
placed Persons (Compensation and Rehabilitation)
Act, 1954 and the Rules 1955 thereunder. The dis-
posal of these properties shall be regulated in accor-
dance with the provisions contained under Section 20
of the Displaced Persons (Compensation & Rehabilita-
tion) Act, 1954 and Rules 87 of the Displaced Persons
(Compensation & Rehabilitation) Rules 1955 by the
Settlement Commissioners and Managing Officers ap-
pointed under the said Act in the following manner:
(I) XXX
(II) XXX
(III) The evacuee lands both agricultural and non-
agricultural, which are not covered by item (i) and (ii) above
are not occupied but are open should be sold to displaced
persons without auction on payment of the present market
value, preference being given to a displaced persons, who is
(i) locally settled (ii) is in genuine need of land/plot for
rehabilitation and (iii) does not possess any property either
in his name or in the name of his family members and, if he
is a claimant displaced person, he has unsatisfied claim of
property left in Pakistan in his name or in the name of his
family members. ………
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(IV) The encroachment of evacuee lands both agricultural
and non-agricultural which do not conflict with the Town Plan
of the area should be regulated by Charging occupancy
price at penal rate of not less than two and half times the
ordinary occupancy price which should be fixed by the
Collector and Settlement Commissioner’s alongwith fine and
annual assessment etc., in the manner as chargeable for
regularization of encroachment of State 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 lands and
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 the
encroachment is a displaced persons, the encroachment
may be regularized by recovering the single occupancy price
which should be fixed by the Collector and Settlement
Commissioner and fine and annual assessment in the
manner as chargeable as per the provisions of section 61 of
Bombay Land Revenue Code, 1879.”
10. A perusal of the said Circular would show that an encroacher can
be considered for regularization of his possession only if there is no
displaced person in terms of clause III. The said clause
contemplates that the evacuee land, both agricultural and non-
agricultural should be sold to displaced person without auction on
payment of present market value. The preference is to be given to
(1) a locally settled displaced person, (2) is in genuine need of
land/plot for rehabilitation and (3) does not possess any property
either in his name or in the name of his family member.
11. In terms of such clause III, the Chief Settlement Commissioner
allotted the land to Respondent No. 4 on 12.10.1990 inter alia for
the reason that he has balance verified claim. The appellant was
also ordered to be evicted being an unauthorized occupant of
evacuee land. We do not find any merit in the argument that the
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appellant was required to be heard before passing such an order as
the appellant is not claiming any right being a displaced person.
Therefore, between the displaced person and a land encroacher,
the displaced person has a priority and thus, was rightly allotted
land. In fact, this Court in Ramesh Parsram Malani v. State of
Telangana3 held that, it is only after the displaced persons are
settled, 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
that transfer of land to the State Government takes such
transferred land out of compensation pool. The land
transferred to the State Government continues to be part of
compensation pool but it is required to be disposed of by the
officers of the State who have been conferred the powers of
the Managing Officer or of the Settlement Commissioner for
the settlement of the displaced persons alone. It is only
after the displaced persons are settled, the State
Government may utilize the land for other purposes.”
(Emphasis Supplied)
12. The appellant relied upon the judgment in Ramesh Parsram
Malani to contend that a displaced person has to file a claim
before 30.06.1955. We do not find any merit in such argument. The
referred case was where a displaced person was an owner of 83.11
acres of land in Pakistan which was verified by the Settlement
Claim Officer. An allotment of 40.4 standards acre was made prior
to commencement of the Act. It is 13 years after the death of
displaced person on 10.08.1988, the legal heir sought allotment of
the remaining verified claim of the displaced person as perennial
source of allotment. The appellant cannot take help from that
3 (2020) 11 SCC 653
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judgment, he having no claim of allotment to an evacuee land. The
displaced person is claiming allotment on the basis of government
policy decision dated 20.06.1978, which policy contemplate that
the allotment of the evacuee land shall be in terms of Section 20 of
the Act.
13. The displaced person- respondent No. 4 is claiming allotment on
the basis of government policy decision dated 20.06.1978. The
evacuee land has to be allotted to a displaced person as it forms
part of the compensation pool in terms of Section 14 of the Act
which can be allotted in terms of Section 20 of the Act. The
evacuee land can be allotted only to a displaced person alone. The
allotment to non-displaced person can be considered only after all
the displaced person have been settled. Therefore, the clause to
allot evacuee land to encroacher in the policy dated 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 have any right of regularization of an evacuee land in the
presence of a displaced person entitled to allotment in order to
satisfy the objective of the Act.
14. It is stated that the possession of the land has been taken over by
the Government on 24.01.2014. The claim of the appellant is now
for restoration of possession by an encroacher, which is wholly
untenable in view of the above observations.
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15. In view thereof, we do not find any merit in the present appeal and
the same is dismissed.
………………………………………J.
(SANJAY KISHAN KAUL)
………………………………………J.
(HEMANT GUPTA)
NEW DELHI;
JULY 13, 2021.
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