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










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

Act, 19541. The appellant filed a writ petition in the High Court of

1 Hereinafter referred to as the ‘Act’

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

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

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


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

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


“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:
(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. ………

(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

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

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.

15. In view thereof, we do not find any merit in the present appeal and

the same is dismissed.



JULY 13, 2021.



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