Haldwani Evictions : Reasons Given By Uttarakhand High Court To Order Evictions In Gafoor Basti Near Railway Land [Read Judgment]

The Court ordered thus while holding that the area in question is the property of the railway, and not Nazul land, as claimed by the dwellers. It may be noted that there are religious places, schools, business establishments, and residences built on the area which is spread over 29 acres.

The order passed by the bench of Chief Justice RC Khulbe and Justice Sharad Kumar Sharma will affect 4,300 families falling under the ambit of encroachment along with railway land.

“…the removal of the encroachment is necessitated, in order to meet out the urgent needs, which is required to be done by the competent authority, who is otherwise expected to maintain a constant vigil on an act of encroachment over the public premises, and where a prolonged delayed process will be a danger for public by permitting the encroacher, claiming semblance of the right to obstruct the removal of encroachment. The need of immediate removal particularly is in the context of Section 147 of the Railways Act could be resorted to,” the Court observed.

In its 176-page order, the Court essentially rejected the argument of the occupants/encroachers that the encroached area is nazul land and they are the holder of nazul land by virtue of their respective leases.

Essentially, this claim was made based by them on the strength of the Office Memorandum dated 17th May, 1907, of the Municipal Department.

Perusing the content of the office Memorandum, the Court noted that the same was not a Government Order and and it did not confer any right upon the respondents/encroachers, as the document was executed only for the purposes of management of the property in accordance to the Nazul Rules.

The Court further held that since the said Memorandum itself restraints any execution of deed of sale or lease of the nazul property, all lease deeds, according to the own case of the respondents would be in violation of the Office Memorandum dated 17th May, 1907, as relied by them.

Importantly, referring to Rule 59 of the Nazul Rules which says that any nazul land, which is lying adjoining to the Railway Station, if it is ever proposed to be sold or leased, would require a prior sanction/approval from the Railway Authorities, the Court noted that thus:

“(such sanction is lacking in) all the lease deeds, which had been relied by the interveners as no lease deed finds any such reference, that any such prior sanction was ever obtained from the 165 Railway Authorities, was taken prior to execution of any deeds… The lease of a nazul land as claimed, which is only confined to a right of enjoyment, it could not be further dealt with by transfer or by a lease or a sale deed, which was restricted under the Office Memorandum of 17th May, 1907, and also under the Nazul Rules itself.”

Against this backdrop, the Court observed that such encroachers didn’t have any right and title vested with them in accordance with law, and hence, they would for all practical purposes be treated to be unauthorized occupants.

The Court also stressed that a particular system, which has been consistently followed, which might have become precedence with the growth of time, need not to be irrationally followed for all times to come

“…the same has to be rationally modulated to be applied in a practical life in order to meet the ever-increasing need of socio-economic development, and which would be inclusive too of the need of development of the Railway projects in the instant case, aimed to cater the increasing public need,” the Court further observed.

In this regard, the Court made a categorical observation that no private need, even though it may not be existing in the instant case, in relation to the interveners, could have precedence over and above a public need and that too, on a property, which has been otherwise vested with the Railways.

With these observations, the Court issued the following orders:

• The Railway Authorities in coordination with the District Administration, and if need be, with any other Para Military Forces, shall immediately, after giving a week’s notice to the occupants over the railways land, ask them to vacate the land within the aforesaid period
• If the occupants / encroachers, fail to vacate the premises, and land in dispute of the Railways, after being noticed, it will be open for the Railway Authorities, that they in joint coordination with the local Police, District Magistrate, Senior Superintendent 174 of Police and other Para Military Forces, as referred to above, will initiate immediate action and take a forceful possession of the occupied land from such occupants/encroachers.
• The statutory authorities as referred to above, will demolish or remove the unauthorised structures, which have been raised by the encroachers on the railways land.
• It will be open for the Railway Authority, that in case, if they are forced to utilize any Force to demolish the structure and to take in possession the property of the railways, unauthorisedly occupied by the encroachers, the cost, which is invested by them in removing the unauthorised occupants, would be recovered from them as an arrear of land revenue.

It may be noted that the PIL praying for the removal of encroachment was initially filed in the year 2013, and on November 9, 2016, the high court ordered the removal of encroachments from the railway land within 10 weeks.

However, the said order was not given effect to and the state moved a review petition challenging the order, which was dismissed in 2017 by a division bench of the HC.

Here, it is important to note that in its last month’s order, the High court has observed that the state moved the said review petition owing to the certain most reckoned political shield, which was then being provided by the then Ruling party for its political gains to the unauthorized occupants, just to secure its vote bank.

Further, in the year 2022, the instant writ petition was again filed stating that there was a delay in removing the encroachment made on the railway land in the area. Hearing the matter, the HC, earlier this year directed the Nainital District Administration to prepare a plan to remove the encroachment along with the Railway officials.

Railway officials and Nainital district administration held a meeting in April 2022, after which Railways filed a detailed plan in HC regarding the removal of encroachment, pursuant to which, the Court made the order of removal of encroachment.

It may be noted that as per various media reports, the administration has started serving eviction notices to the occupants on the strength of the HC’s order and a total of 4,365 encroachments will be removed from the area.

Several families, who have now been declared unauthorized occupants, have been living in the area for decades. The said encroachers have been strongly opposing this order and they have taken to the streets to raise their voices.

The Supreme Court is set to hear a bunch of pleas challenging the eviction notices and the HC’s order tomorrow (January 5)

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