'Eviction Can't Be Stalled For Want Of Demarcation': Himachal Pradesh High Court Orders Removal Of Encroachments From Highways

Observing that the eviction of encroachers cannot be stalled for want for demarcation, the Himachal Pradesh High Court has directed the state Public Works Department to remove the encroachments on the highways in Shimla, Mandi and Hamirpur within a period of four weeks.

"The Deputy Commissioner(s) as also Superintendent(s) of Police of the concerned District(s) are directed to render all necessary help including adequate police help at the time of removal of encroachments," said the division bench of Justice Tarlok Singh Chauhan and Justice Virender Singh.

Hearing a plea challenging the proposed demolition of a dhaba, the high court in July 2021 had taken suo motu note of the unauthorised constructions on highways and directed the authorities to ensure removal of all illegal roadside dhabas and restaurants.

On November 3, the court was informed that there are as many as 472 cases of encroachments - 134 in Shimla, 240 in Mandi Zone and 98 in Hamirpur Zone. However, the PWD argued that though the encroachers have been directed to demolish the constructions, they could not be evicted for want of demarcation by the revenue agency.

Expressing surprise at the State's stand, the court said it wonders why the department is waiting for demarcation when admittedly as per its own case, the encroachments have been "made on the acquired width of the roads".

"It is more than settled that all lands, which are not the property of any person or which are not vested in a local authority, belong to the government. All unoccupied lands are the property of the government, unless any person can establish his right or title to any such land. This presumption available to the Government is not available to any person or individual," said the court.

The bench added that the onus to prove title to unoccupied lands belonging to the Government is on the private parties. The Court placed reliance on the Supreme Court decisions in R. Hanumaiah and Another v. Secretary to Government of Karnataka, Revenue Department and Others; State of A.P. v. A.P. State Wakf Board, 2022 and on a previous High Court decision in Pancham Chand v. The State of H.P. and Another, 2016.

"In view of the aforesaid exposition of law, the onus is upon the encroacher(s), to either prove his/her entitlement or title by adverse possession and having failed to do so, encroacher(s) is/are liable to be evicted and such eviction cannot be stalled only for want of demarcation," said the court.

On October 20, the court had observed that instead of repeatedly passing directions regarding the encroachments made on the Highways, the authorities itself could plan to construct road side eateries and provide all other amenities, "after all, the majority of the encroachments are for the purpose of making stalls/shops, Dhabas etc."

"These road side eateries could be leased/rented out. Apart-from the shops and other commercial establishments, the provisions of toilet etc. could also be made," the court had said.

In the latest order it said this issue will be taken up for consideration on the next date of hearing, which is December 1.

Case Title: Harnam Singh v. State of Himachal Pradesh and Others