Analysis

Haldwani Railway Land Encroachment: SC Itself Isn't Quite Consistent On Issue

Sanjeev Nayyar

Jan 23, 2023, 12:16 PM | Updated 12:16 PM IST

The Supreme Court of India. (Wikimedia Commons)
The Supreme Court of India. (Wikimedia Commons)
  • Encroachment or land grab is a crime. If the SC insists on rehabilitation, would it not be tantamount to rewarding or encouraging crime?
  • Years ago, I had visited Nainital — very close to Haldwani, where the attempt to remove encroachments on railway land has been stayed by the Supreme Court — and was surprised to find a huge masjid near Naini Lake. On inquiring, this is what the locals said.   

    Muslims in Nainital offered namaz on a road that connected the mall road with the road that goes to the high court.

    Since the road was used by those who worked in the high court, namaz caused great inconvenience.

    Judicial pressure was brought upon the Muslims to stop offering namaz on the mall road in lieu of which the administration, without making it explicit, allowed the community to build a large mosque (a small one had existed earlier), although new construction is not allowed in the area.

    Can the state reconfirm this? The new mosque, based on external looks, seems to be a a post-2000 construction.

    Due to its size and location, the masjid is amongst the first things a tourist sees on entering Nainital. Also, the masjid dwarfs the Naini Mandir after which the hill station is named.

    So, when we look at issue of alleged encroachment of railway land, we must realise that the current masjid’s size and demographic changes in the region could influence how people think on the encroachment issue, both within and outside the region.

    This article gives the sequence of events and extracts from the Uttarakhand High Court (UHC) order of 20 December 2022 (read the judgement here), including the arguments of the illegal occupants and Supreme Court (SC) orders on encroachments in Gujarat, Faridabad and Navi Mumbai.

    The railways told the UHC that 4,365 homes are illegally occupying 78 acres of railway land. The area is commonly known as Gaffur Basti.

    Approximately 50,000 people live here, which implies an average of 11.45 people per home. The details above and below are sourced from a Hindustan Times report.

    In 2007, the North Eastern Railway tried to remove these encroachments. An attempt was made to clear 10 out of the 29 acres but fresh encroachments took place over the years after.

    A century earlier, in 1907, the British department had assigned all the land to the local municipal department as nazul land, saying no sale or perpetual lease will be allowed.

    The locals claim they are the rightful leaseholders. “All the occupants of the railways land, claim themselves to be holders of the nazul land, by virtue of their respective leases.” (Para 6 of UHC judgement)

    The issue was kept simmering after 2007. In 2013, a public interest litigation (PIL) was filed in the UHC saying 29 acres of railway land had been encroached upon. It claimed that the encroachment was hampering the extension of railway facilities, including new trains to Haldwani and Kathgodam junctions. Note that these stations are the gateway to beautiful Kumaon.

    The matter was under judicial scrutiny for a long time, “The Division Bench of this Court, on 1st September, 2014, had passed an order directing to appoint an Advocate Commissioner to inspect the site and to submit the report of inspection, regarding the alleged aspect of illegal mining activities and illegal encroachments over State and Railway land.” (Para 62 of judgement).

    In 2016, the High Court asked the authorities to remove encroachment within 10 weeks. (Para 62).

    “Owing to the certain most reckoned political shield, which was then being provided by the then ruling party for its political gains to the unauthorised occupants, just to secure its vote bank, the state itself has filed a Review Petition, for no subsisting and valid reasons.” (Para 63).

    In 2016, it was the Congress party that ruled the state.

    “Residents of this land went to the Supreme Court, which in 2017 told the UHC that the residents’ side should be heard too.” (Para 64, 65 of judgement, and an Indian Express report).

    Thus applications were invited by UHC from those affected by its November 2016 order and considered by the Division Bench. They were disposed of by the judgement of 22 November, 2019.” (Para 66)

    Another PIL was filed in March 2022 saying there was contempt of court.

    Responding to this PIL, the Railways told the UHC that it had conducted a demarcation of the encroached land and found 4,365 homes to be illegally occupying 78 acres of land.

    The demarcation also found that there were four government schools, three public schools, three public health centres and a community health centre, a temple, five mosques and two dharamshalas on the encroached land.

    According to paras 72, 73 of the UHC judgement of December 2022, a joint survey was done and its report recorded by the court in its 7 April 2021 order.

    An extract: “The record shows a joint survey was conducted by the joint team of revenue officials and officials of the Railways Department and they have identified the unauthorised occupants, after demarcating the land which was found unauthorisedly occupied by them, and each and every unauthorised occupant were (sic) duly heard by the said Joint Inspection Team, and the statement of as many as 1,049 occupants were recorded by the joint inspection team.” (Also read para 176 of the judgement).

    This court, before passing any final order, felt it necessary that the occupants of the land are required to be heard and hence by the order of 18 May 2022, a publication was issued in two local newspapers of wide circulation, "inviting the intervention by any of the persons who may be effected by any order.” (Para 83).

    In May 2022, the UHC directed the affected people to present ownership documents within two weeks. Seven months later, the UHC order of 20 December 2022 asked residents to vacate in one week.

    On 1 January 2023, the railways issued notices to residents of the 4,365 homes to remove encroachments.

    Demolition would happen by 7 January. The locals approached the Supreme Court on 7 January, which granted a stay against demolition and fixed the next date of hearing as 7 February.

    The following are the observations and arguments by occupants The first move to remove encroachments was made in 2007 by the railways. In 2013, a PIL was filed.

    In 2016, the UHC asked for encroachments to be removed. The occupants of the railway land pleaded that the land was not identified or demarcated in a joint survey.

    This plea was clearly wrong, because a survey was done. (See point above and para 73 of UHC order dated 20 December 2022).

    The same order responds to the claims of ownership of numerous occupants. For example, one Sarafat Khan claimed he has been occupying the land which has been in their possession for over 50 years.

    But the court noted: “Merely being in an uninterrupted possession for last over 50 years, as claimed, that in itself, will not mature their legal rights to continue with possession.” (Para 102).

    Another occupant claimed rights under a lease deed of 1940. The UHC held it invalid for four reasons, one of which was that the deed was not registered as per its terms. (Para 103).

    A third occupant argued that they had been paying house and water taxes, and hence they had the title.

    It is a settled position of law (1997 SC order) “that merely recording of a name of the person in the revenue records or payment of revenues by the occupants of the land does not confer title.” (Para 144).

    The court judgment also said this.

    “While deciding the controversy over unauthorised occupancy, whether there could be a deprivation of personal life or liberty, and in a given case, whether the procedure resorted to for removal is unreasonable, fair and unjust, on the basis of the principle of Olga Tellis (Supra), the Hon'ble Apex Court in the matter of Ahmedabad Municipal Corporation (Supra) has held that though one has a right to make use of public property for private purpose, but the said right of use is not permanent in nature. (Para 236). (Note, the UHC order of 2016 for removal of encroachments was not acted upon)

    The occupants argued that the said land was nazul land.

    “The UHC rejected the plea that the land was nazul land. For those who referred to a 1907 document, the UHC held that the 1907 document was a mere ‘Office Memorandum’ and therefore invalid for the purposes of determining the classification of land. This would essentially mean that every transaction, sale, lease that flows from the document is now deemed invalid. The court relied on a 1959 notification that vested land in the Indian Railways.” (Source, Indian Express; to read the definition of nazul land, see para 25 of UHC judgement).

    Also, conferring the right of management, in accordance with nazul rules, does not make the land of Haldwani Khas acquire the status of nazul land. (Para 33).

    “It could be conclusively held that the provisions of the Public Premises Act of 1971 would not be applicable in the light of the ratio of the Hon'ble Apex Court judgement. (Para 95)

    Thus, the December 2022 UHC order was passed after the occupants were heard and due notice of eviction given.    

    One must admire the judges of the Uttarakhand High Court for such a detailed and comprehensive order. But the Supreme Court order of January 2023 says occupants cannot be moved without a rehabilitation plan.

    Question: Has the Supreme Court earlier insisted upon a rehabilitation plan before uprooting people who may have illegally occupied land?

    According to this June 2021 report, “The Supreme Court Monday directed Haryana and the Faridabad municipal corporation to remove all encroachments, consisting (of) around 10,000 residential constructions, in Aravalli forest area near a village, saying land grabbers cannot take refuge of rule of law and talk of fairness.”

    Some one lakh people lived on encroached land in village Khori Gaon.

    In the Haldwani matter, the court struck a different note.

    According to a Tribune report, “The bench also said, 'There can't be uprooting of 50,000 people overnight. There has to be segregation of people who have no right on the land and the need to rehabilitate while considering the interests of the railways'.”

    But the joint survey mentioned above addresses precisely this concern.

    Note that in a similar case in Gujarat, “The Hon'ble Apex Court, vide its order of 16th December, 2021, had laid down certain wider parameters and principles which were to be adhered for the purposes of taking an action against the encroachers in any property belonging to the state, local bodies or the railways.” (Para 79).

    The guidelines classified the time period for occupiers to vacate premises under two options and gave two and six weeks’ time, failing which the Western Railway could demolish the structures. (Para 80)

    Here are some examples of earlier Supreme Court orders on encroachments. 

    Recently, the court ordered the demolition of illegal two multi-storeyed towers in NOIDA.  The demolition was done to send a message to builders that all illegal constructions would meet the same fate.

    In December 2018, the Supreme Court ordered status quo on a November 2017 Allahabad High Court order directing removal of an illegal mosque in the court’s premises. Nearly five years later, the Supreme Court is said to hear the issue on 9 February 2023.

    Is it a coincidence that the Haldwani eviction matter is being heard a couple of days before, ie. on 7 February? 

    According to this Indian Express report, “Hearing it again in February 2018, a Supreme Court bench, comprising the then Chief Justice of India Dipak Misra and Justice AM Khanwilkar and then justice DY Chandrachud, called for an amicable solution and asked the parties to discuss among themselves to arrive at a settlement, if possible.”

    Did the court call for an amicable solution before evicting illegal occupants of forest land in Faridabad?

    The respected judges wanted the Allahabad High Court or the state government to find an alternate piece of land for the mosque. The “Waqf Board had contended that the structure had been there for several decades and it can't be just asked to move out.” (New Indian Express)

    When a mosque is deemed to be illegal, it does not matter if it existed for decades. Also, is it correct for the SC to facilitate the search for an alternate location?

    If courts facilitate alternative sites for illegal construction or encroachments, are they not indirectly supporting encroachment of land?

    According to this October 2019 Hindustan Times report, “The demolition of a 15th century shrine dedicated to Sant Ravidas (also Guru of Rajput Queen Meerabai) was carried out by the Delhi Development Authority on orders of the Supreme Court because (the) shrine was located in a protected forest.

    The Supreme Court on Monday agreed to allow the construction of a shrine to Guru Ravidas, revered by the Dalits, in south Delhi, on a 400 square metre plot of land at the same site where a Ravidas temple was demolished in August.”

    (Also read: Why Demolition Of Sant Ravidas Temple In A Delhi Forest Has Dalits Up In Arms)

    Subsequent to a Supreme Court order, the Bawakhaleshwar Temple in Navi Mumbai was demolished in 2018. (Source Indian Express). The temple, built over 32 acres, was built on land owned by MIDC (Maharashtra Industrial Development Corporation).

    While no two cases are the same, we have to leave it to readers to decipher if the approach of the apex court is consistent? It is not the author’s intent to cast aspersions on the judiciary, individually or collectively. There is no mala fide intent.

    Our aim is to provoke thought. Encroachment or land grab is a crime. If the SC insists on rehabilitation, would it not be tantamount to rewarding or encouraging crime?

    * Should courts focus more on upholding the law, ie, the rights of the landowners, or encroachers?

    * Should matters of compassionate rehabilitation be left to the executive authorities, who are accountable to the people, as opposed to the courts whose remit is limited to upholding the law?

    Reflect and decide.

    Reference

    Uttarakhand High Court Order of 20 December 2022. All references to paragraphs in the above article relate to paragraphs in this order. You can read the full judgement here

    The writer is an independent columnist, travel photojournalist and chartered accountant, and founder of eSamskriti. He tweets at @sanjeev1927.


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