Dishonesty Is The Only Policy: U’khand HC Shoots Down Govt’s Circular To Freehold Encroached Nazul Land

Imposes cost of Rs 5L on state; to go into corpus for setting up NLU in state

The Uttarakhand High Court recently slammed the state government for its decision to convert any Nazul land under encroachment or illegal occupation to freehold.

So disquieted was the bench of Justice Rajiv Sharma and Justice Lok Pal Singh that it not only struck down the particular clause of the government’s Nazul policy which allowed conversion of Nazul land in illegal occupation to freehold, but also slapped a cost of Rs. 5 lakh on the state.

The bench was all the more disturbed as it recollected how while it was dealing with the matter pertaining to the establishment of National Law University, the Advocate-General had given a statement that land measuring merely 10 acres is not available in the districts of Nainital and Udham Singh Nagar.

“Why this much of land is not available because the State Government, instead of retaining its land, has permitted the same to be granted to unscrupulous people under the unauthorized occupation of the government land. The State Government has not shown any concern for the establishment of the University but has vehemently defended the circular framed to declare the Nazul land as freehold,” it said while ordering that the cost of Rs. 5 lakh would go in the corpus for creating the National Law University in the state.

It then went on to order asunder:

1. Clauses 4(f)(g)(h) of the Nazul Policy dated 1.3.2009 issued by the state government is struck down along with all consequential orders by applying the principle of severability. The state government is directed to take possession of the Nazul land which was declared freehold as per the notification dated 1.3.2009.

1. The land in occupation of unauthorized occupants will be deemed to be in occupation of the state government free from all encumbrances.

1972. The state government has admitted all these persons to be in unauthorized occupation as per Section 2(g) of the U.P. Public Premises (Eviction of Unauthorized Occupants) Act, 1972. No separate order of eviction is required issued qua them but they are still required to be evicted.

1. The state government is restrained from issuing general policy or Nazul policy to regularize the unauthorized occupants/encroachments in future and even if any policy has come into force after 01.03.2009, the same shall not be given effect.

1. Costs is quantified as Rs. 5 lakh. The costs imposed shall be deposited in the corpus for creating the National Law University in the State of Uttarakhand.

The court’s order comes on three petitions challenging the government order of March 1, 2009, which allowed it to freehold Nazul land in favour of encroachers or occupants whose lease has already expired.

The government defended its circular saying the area for which the freehold rights have been granted to individual is very less and even most of the cases, it is less than 100 sqm and that the beneficiaries of the Nazul policy are urban population.

It left the court wondering, “How the State Government can encourage the regularization of unauthorized occupation merely on the basis of definition given under the provisions of U.P. Public Premises (Eviction of Unauthorized Occupants) Act, 1972?

“The Nazul land belongs to the state government. It is to be utilized for the benefit of citizens. The action is so arbitrary that it would lead to lawlessness. The State should maintain the rule of law. How the State can negate the rule of law by regularizing the possession of unauthorized occupants in this manner.

“…The State Government instead of evicting these persons has proposed to regularize the land who fulfil certain conditions as per the cut-off date i.e. 9.11.2011,” the bench noted.

“The purpose of Policy is against the Constitutional scheme. The State has encouraged unscrupulous people to remain in unauthorized occupation of the land hoping against hope that the land would be regularized by converting the Nazul land into freehold rights. The dishonest people are given encouragement by the State agencies to remain in unauthorized occupation. How the State Government can be privy to such a decision?

“The action of the State Government may lead to anarchy. The State Government, instead of encouraging the honesty, has paid premium to the dishonest people. There is an old adage that ‘Honesty is the best policy’, however, for the State the motto is dishonesty is the only policy. The Circular/Policy framed by the State Government to freehold the land in favour of the unauthorized occupants is against the public policy…The policy, instead of giving land to the poorest of poor including SC/ST/people living under Below Poverty Line, has been given to those persons who have occupied the land unauthorizedly,” it observed.

The high court reiterated the Supreme Court’s reference to the principle of civilised society relying on the Fifth Amendment in the US Constitution in the case titled State of Haryana v. Mukesh Kumar where it dealt with the protection of public property.

The bench went on to add that the state property could not be parted with on the basis of circular which even has not been approved by the Cabinet.

“The State Government should follow dharma,” it remarked.

While the state claimed that the land in question is small in size, counsel for one of the petitioners informed the bench that the land which was being declared in Rudrapur Tehsil, Rudrapur (U.S. Nagar), as freehold is more than 1,900 acres.

“The Court can take judicial notice of the fact that if 1900 acres of land was being declared freehold in Rudrapur Tehsil only, the land in the entire State, to be declared freehold, would not be less than 20,000 acres,” said the court.

Read The Judgment Here: