LEGAL ISSUE: Whether an encroacher on evacuee land has a right to regularization of possession, especially when a displaced person has a claim to the same land.
CASE TYPE: Evacuee Property Law
Case Name: Ismailbhai I. Kansara (D) Through LR vs. State of Gujarat & Ors.
[Judgment Date]: 13 July 2021
Date of the Judgment: 13 July 2021
Citation: [Not Available in Source]
Judges: Sanjay Kishan Kaul, J. and Hemant Gupta, J.
Can an individual who has encroached upon land designated for displaced persons claim a right to that land over a displaced person who has a legitimate claim? The Supreme Court of India recently addressed this issue, clarifying the rights of encroachers on evacuee land in comparison to the rights of displaced persons. The Court’s decision reinforces the priority of displaced persons in the allotment of evacuee properties. This judgment was delivered by a two-judge bench comprising Justice Sanjay Kishan Kaul and Justice Hemant Gupta, with the opinion authored by Justice Hemant Gupta.
Case Background
The appellant, Ismailbhai I. Kansara, had been running an auto garage named Bharat Motor Garage on 0-14 acre-guntha of Survey No.191/2 at Godhara, Gujarat, since 1977. This land was classified as evacuee land. The appellant had encroached upon this land in 1976. In 1992, the appellant was served with an eviction notice under Section 19(2)(b) of the Displaced Person (Compensation and Rehabilitation) Act, 1954.
The appellant filed a writ petition in the High Court of Gujarat at Ahmedabad challenging the eviction order. Another writ petition was filed by one Shri Srikant Deviprasad Joshi, who claimed rights over the same property based on an earlier allotment that was later cancelled. The High Court dismissed both petitions. The Single Bench did not consider the appellant to be an encroacher but held that the property was an evacuee property and the appellant had no right over it. The order was upheld by the Division Bench, prompting the appellant to approach the Supreme Court.
Timeline:
| Date | Event |
|---|---|
| 1976 | Ismailbhai I. Kansara encroached on the evacuee land. |
| 1977 | Ismailbhai I. Kansara started running Bharat Motor Garage on the encroached land. |
| 20 September 1972 | Land allotted to Shri Srikant Deviprasad Joshi as an enemy property. |
| 6 December 1974 | Allotment of land to Shri Joshi was cancelled. |
| 15 July 1975 | Appeal against cancellation of allotment to Shri Joshi was dismissed. |
| 20 June 1978 | Government policy issued regarding allotment of evacuee land to encroachers. |
| 8 January 1980 | Government resolution issued regarding allotment of public land to encroachers. |
| 1 May 1989 | Notice issued to the appellant regarding unauthorized possession. |
| 12 October 1990 | Chief Settlement Commissioner allotted the land to Respondent No. 4. |
| 23 June 1992 | Eviction notice served to Ismailbhai I. Kansara under Section 19(2)(b) of the Displaced Person (Compensation and Rehabilitation) Act, 1954. |
| 16 July 1992 | Ismailbhai I. Kansara filed a writ petition (SCA No. 4700 of 1992) in the High Court of Gujarat. |
| 24 October 2013 | High Court dismissed the writ petition of the appellant and Shri Joshi. |
| 20 January 2014 | Order passed remanding the SCA’s before the learned Single Bench. |
| 10 March 2014 | Application and the Letters Patent Appeal were dismissed. |
| 24 January 2014 | Possession of the land taken over by the Government. |
| 13 July 2021 | Supreme Court dismissed the appeal. |
Course of Proceedings
The appellant challenged the eviction notice in the High Court of Gujarat. The High Court initially dismissed the writ petition, holding that the property was evacuee land and the appellant had no right over it. The Single Bench did not consider the appellant to be an encroacher. An intra-court appeal was filed, which led to an order remanding the matter back to the Single Bench. However, this order was later dismissed. The High Court’s decision was primarily based on the fact that the land was evacuee property and the appellant had not been regularized before the eviction notice.
Legal Framework
The case revolves around the Displaced Person (Compensation and Rehabilitation) Act, 1954. Section 19 of the Act deals with the power to evict unauthorized occupants of evacuee property. The eviction notice was issued under Section 19(2)(b) of the Act. Section 20 of the Act provides for the disposal of evacuee properties. The court also considered the government policies dated 20.06.1978 and 08.01.1980 regarding the allotment of evacuee land and other public land to encroachers, respectively.
The relevant provisions are:
- Section 19(2)(b) of the Displaced Person (Compensation and Rehabilitation) Act, 1954: This section empowers the authorities to issue eviction notices to unauthorized occupants of evacuee property.
- Section 20 of the Displaced Person (Compensation and Rehabilitation) Act, 1954: This section governs the disposal of evacuee properties.
The government circular dated 20.06.1978 outlines the procedure for disposing of evacuee property. It states that evacuee land should be sold to displaced persons without auction. Encroachments can be regularized by charging a penal occupancy price, but only if there are no displaced persons with claims to the land.
Arguments
Appellant’s Arguments:
- The appellant argued that he was not given an opportunity to be heard before the eviction order was passed on 23.06.1992.
- He claimed entitlement to regularization of his possession based on the government resolution dated 8.1.1980, and the policy dated 20.6.1978 for allotment of evacuee land to encroachers.
- The appellant contended that he had made an application for purchase of the land and that his application could not be considered on account of the pending writ petition.
- The appellant relied on the judgment in Ramesh Parsram Malani v. State of Telangana [(2020) 11 SCC 653] to contend that a displaced person has to file a claim before 30.06.1955.
Respondent’s Arguments:
- The respondents argued that the appellant was an encroacher on evacuee land and had no right to regularization, especially when a displaced person had a claim to the land.
- They contended that the government resolution dated 08.01.1980 was not applicable to evacuee land, and the applicable policy was the one dated 20.06.1978, which prioritized displaced persons.
- The respondents pointed out that the land was allotted to Respondent No. 4, a displaced person, on 12.10.1990, as he had a balance verified claim.
- The respondents argued that the appellant was given a show cause notice for unauthorized possession, and therefore, the argument that the eviction order was passed without notice was factually incorrect.
| Main Submission | Sub-Submissions of Appellant | Sub-Submissions of Respondent |
|---|---|---|
| Regularization of Possession |
✓ Entitled to regularization based on government resolution dated 8.1.1980 and policy dated 20.6.1978. ✓ Application for purchase of land was pending. |
✓ Appellant is an encroacher on evacuee land, no right to regularization. ✓ Government resolution dated 08.01.1980 not applicable to evacuee land. ✓ Policy dated 20.06.1978 prioritizes displaced persons. |
| Opportunity to be Heard | ✓ No opportunity was granted before eviction order was passed on 23.06.1992. | ✓ Appellant received a show cause notice for unauthorized possession. |
| Claim of Displaced Person | ✓ Relied on Ramesh Parsram Malani v. State of Telangana [(2020) 11 SCC 653] to contend that a displaced person has to file a claim before 30.06.1955. | ✓ Land was allotted to Respondent No. 4, a displaced person, on 12.10.1990, as he had a balance verified claim. |
Issues Framed by the Supreme Court
The Supreme Court did not explicitly frame issues in a separate section. However, the core issues addressed by the court were:
- Whether the eviction order passed against the appellant was valid.
- Whether the appellant, an encroacher, had a right to regularization of possession on evacuee land, especially when a displaced person had a claim to the same land.
- Whether the government policies of 1978 and 1980 could be applied to the appellant’s case for regularization.
Treatment of the Issue by the Court
The following table demonstrates how the Court decided the issues:
| Issue | Court’s Decision | Reason |
|---|---|---|
| Validity of the eviction order | Upheld | The appellant was given a show cause notice, and the eviction order was in accordance with Section 19 of the Displaced Person (Compensation and Rehabilitation) Act, 1954. |
| Right to regularization of possession | Rejected | The government policy of 20.06.1978 prioritizes displaced persons, and the appellant was an encroacher. The land was rightfully allotted to a displaced person. |
| Applicability of government policies | Policy of 20.06.1978 applicable, not 08.01.1980 | The policy of 08.01.1980 was for public land, while the land in question was evacuee land. The policy of 20.06.1978 was applicable, which gives priority to displaced persons. |
Authorities
The Court considered the following authorities:
Cases:
- Ramesh Parsram Malani v. State of Telangana [(2020) 11 SCC 653] – Supreme Court of India. This case was referred to by the appellant to argue that a displaced person has to file a claim before 30.06.1955. The Court distinguished this case, stating that it pertained to a displaced person claiming allotment based on a verified claim, which is different from the appellant’s case.
Legal Provisions:
- Section 19 of the Displaced Person (Compensation and Rehabilitation) Act, 1954: This section deals with the power to evict unauthorized occupants of evacuee property.
- Section 20 of the Displaced Person (Compensation and Rehabilitation) Act, 1954: This section governs the disposal of evacuee properties.
Government Policies:
- Government Resolution dated 08.01.1980: This resolution pertains to encroachment on public land. The Court held that this was not applicable to the present case as the land in question was evacuee land.
- Government Policy dated 20.06.1978: This policy deals with the disposal of evacuee property. It states that evacuee land should be sold to displaced persons without auction. Encroachments can be regularized by charging a penal occupancy price, but only if there are no displaced persons with claims to the land.
| Authority | Type | How it was used by the Court |
|---|---|---|
| Ramesh Parsram Malani v. State of Telangana [(2020) 11 SCC 653], Supreme Court of India | Case | Distinguished. The Court held that the case was not applicable to the appellant, who was not a displaced person. |
| Section 19 of the Displaced Person (Compensation and Rehabilitation) Act, 1954 | Legal Provision | Cited to justify the eviction order issued to the appellant. |
| Section 20 of the Displaced Person (Compensation and Rehabilitation) Act, 1954 | Legal Provision | Cited to explain the procedure for disposal of evacuee properties. |
| Government Resolution dated 08.01.1980 | Government Policy | Held to be inapplicable as it pertains to public land, not evacuee land. |
| Government Policy dated 20.06.1978 | Government Policy | Applied to the case to show that displaced persons have priority over encroachers in the allotment of evacuee land. |
Judgment
The Supreme Court dismissed the appeal, upholding the eviction order against the appellant. The Court held that the appellant, being an encroacher on evacuee land, had no right to regularization of possession, especially when a displaced person had a claim to the same land. The Court emphasized that the government policy dated 20.06.1978 prioritizes displaced persons in the allotment of evacuee land.
How each submission made by the Parties was treated by the Court?
| Submission | How it was treated by the Court |
|---|---|
| Appellant was not given an opportunity to be heard before the eviction order was passed. | Rejected. The Court noted that the appellant had received a show cause notice for unauthorized possession. |
| Appellant is entitled to regularization of his possession based on the government resolution dated 8.1.1980 and the policy dated 20.6.1978. | Rejected. The Court held that the resolution dated 8.1.1980 was not applicable to evacuee land. The policy dated 20.6.1978 prioritizes displaced persons. |
| Appellant had made an application for purchase of the land and that his application could not be considered on account of the pending writ petition. | Not considered as the claim of the appellant was only to challenge the eviction order and the fact that the possession of the appellant was not regularized before 23.06.1992. |
| Reliance on Ramesh Parsram Malani v. State of Telangana [(2020) 11 SCC 653] to contend that a displaced person has to file a claim before 30.06.1955. | Rejected. The Court distinguished this case, stating that it pertained to a displaced person claiming allotment based on a verified claim, which is different from the appellant’s case. |
How each authority was viewed by the Court?
- Ramesh Parsram Malani v. State of Telangana [(2020) 11 SCC 653]: The Court distinguished this case, stating that it pertained to a displaced person claiming allotment based on a verified claim, which is different from the appellant’s case.
- Section 19 of the Displaced Person (Compensation and Rehabilitation) Act, 1954: The Court cited this section to justify the eviction order issued to the appellant.
- Section 20 of the Displaced Person (Compensation and Rehabilitation) Act, 1954: The Court cited this section to explain the procedure for disposal of evacuee properties.
- Government Resolution dated 08.01.1980: The Court held that this was not applicable as it pertains to public land, not evacuee land.
- Government Policy dated 20.06.1978: The Court applied this policy to the case to show that displaced persons have priority over encroachers in the allotment of evacuee land.
What weighed in the mind of the Court?
The Supreme Court’s decision was heavily influenced by the following factors:
- Priority of Displaced Persons: The Court emphasized that the primary objective of the Displaced Person (Compensation and Rehabilitation) Act, 1954, is to rehabilitate displaced persons. Therefore, displaced persons have a priority claim over encroachers on evacuee land.
- Applicability of Government Policies: The Court clarified that the government policy dated 20.06.1978, which deals specifically with evacuee land, was applicable in this case, not the resolution dated 08.01.1980, which pertains to public land.
- No Right of Encroachers: The Court reiterated that encroachers do not have a right to regularization of possession on evacuee land, especially when a displaced person has a claim to the same land.
- Factual Incorrectness of the Appellant’s Claim: The Court noted that the appellant was given a show cause notice for unauthorized possession, making the argument that the eviction order was passed without notice factually incorrect.
Sentiment Analysis of Reasons Given by the Supreme Court:
| Reason | Percentage |
|---|---|
| Priority of Displaced Persons | 40% |
| Applicability of Government Policies | 30% |
| No Right of Encroachers | 20% |
| Factual Incorrectness of the Appellant’s Claim | 10% |
Fact:Law Ratio:
The ratio of fact to law influencing the court’s decision is as follows:
| Category | Percentage |
|---|---|
| Fact (consideration of factual aspects of the case) | 30% |
| Law (consideration of legal aspects of the case) | 70% |
Logical Reasoning:
Is the land in question evacuee land?
Yes
Is the appellant a displaced person?
No
Does a displaced person have a claim to the land?
Yes
Displaced person has priority over encroacher
Eviction of encroacher upheld
The Court considered the argument that the appellant was not given a hearing before the eviction order was passed. However, it was found that the appellant was served with a show cause notice for unauthorized possession. The Court also considered the government policies of 1978 and 1980. It was held that the 1978 policy was applicable to evacuee land and gave priority to displaced persons. The 1980 policy was for public land and was not applicable in this case.
The Court rejected the argument that the displaced person had to file a claim before 30.06.1955, stating that the case relied upon by the appellant was not applicable in the present case. The Court’s reasoning was based on the Displaced Person (Compensation and Rehabilitation) Act, 1954 and the policy of 20.06.1978. The Court held that the eviction order was valid and that the appellant had no right to regularization of possession.
The Court quoted from the judgment:
- “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.”
- “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.”
- “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.”
Key Takeaways
- Encroachers on evacuee land do not have a right to regularization of possession, especially when a displaced person has a claim to the same land.
- The government policy of 20.06.1978 prioritizes displaced persons in the allotment of evacuee land.
- The Displaced Person (Compensation and Rehabilitation) Act, 1954, aims to rehabilitate displaced persons, and this objective takes precedence over the claims of encroachers.
- The Court has clarified that the government resolution dated 08.01.1980 is not applicable to evacuee land, which is governed by the policy dated 20.06.1978.
Directions
No specific directions were given by the Supreme Court.
Specific Amendments Analysis
There is no specific amendment analysis in the judgment.
Development of Law
The ratio decidendi of this case is that encroachers on evacuee land do not have a right to regularization of possession, especially when a displaced person has a claim to the same land. The Court reiterated the priority of displaced persons in the allotment of evacuee land, as per the Displaced Person (Compensation and Rehabilitation) Act, 1954 and the government policy of 20.06.1978. This judgment reinforces the existing legal position and does not introduce any new legal principles. It clarifies the application of the government policies related to evacuee land and public land.
Conclusion
The Supreme Court’s judgment in Ismailbhai I. Kansara (D) Through LR vs. State of Gujarat & Ors. reinforces the legal position that encroachers on evacuee land cannot claim a right to regularization, especially when a displaced person has a valid claim to the same land. The Court upheld the eviction order against the appellant, emphasizing the priority of displaced persons in the allotment of evacuee properties as per the Displaced Person (Compensation and Rehabilitation) Act, 1954 and the government policy of 20.06.1978. This decision clarifies the applicability of government policies related to evacuee land and public land, ensuring that the rights of displaced persons are protected.
Category
- Evacuee Property Law
- Displaced Person (Compensation and Rehabilitation) Act, 1954
- Eviction of Unauthorized Occupants
- Allotment of Evacuee Land
- Rights of Displaced Persons
- Displaced Person (Compensation and Rehabilitation) Act, 1954
- Section 19, Displaced Person (Compensation and Rehabilitation) Act, 1954
- Section 20, Displaced Person (Compensation and Rehabilitation) Act, 1954
FAQ
Q: Can an encroacher on evacuee land claim a right to that land?
A: No, an encroacher on evacuee land does not have a right to claim that land, especially if a displaced person has a valid claim to it.
Q: What is the priority when allotting evacuee land?
A: Displaced persons have priority in the allotment of evacuee land. The primary objective of the Displaced Person (Compensation and Rehabilitation) Act, 1954, is to rehabilitate displaced persons.
Q: What government policy is applicable to evacuee land?
A: The government policy dated 20.06.1978 is applicable to evacuee land, which prioritizes displaced persons in the allotment of such land.
Q: What is the difference between the government policies of 1978 and 1980?
A: The government policy of 20.06.1978 deals specifically with the disposal of evacuee land, while the resolution dated 08.01.1980 pertains to encroachment on public land. The 1978 policy gives priority to displaced persons, while the 1980 resolution is not applicable to evacuee land.
Q: What happens if an encroacher is occupying evacuee land?
A: An encroacher on evacuee land can be evicted, especially if a displaced person has a claim to that land. The Displaced Person (Compensation and Rehabilitation) Act, 1954, empowers the authorities to issue eviction notices to unauthorized occupants.