• This essay gives sequence of events since 2007, extracts from the Uttarakhand High Court order of Dec 22, arguments of illegal occupants and SC orders on encroachments in Gujarat, Faridabad and Navi Mumbai.

Years ago I visited Nainital i.e. very close to Haldwani and was surprised to see a huge Masjid near Naini Lake. On inquiring this is what 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 existed earlier) although new construction is not allowed in the area.

Close up of Jami Masjid, Nainital. Pic 2012. 

Can the state reconfirm this? The new mosque, based on external looks, seems to be 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 alleged encroachment of railway land we must realize that the current masjid size and demographic changes in the region could influence how people think on encroachment issue, both within and outside the region.

This article gives sequence of events and extracts from the Uttarakhand High Court (UHC) order of 20/12/2022 or 1 (read here), arguments of illegal occupants and Supreme Court (SC) orders on encroachments in Gujarat, Faridabad and Navi Mumbai.

Background (Source Hindustan Times and 1)

1. Railways told the UHC that 4,365 homes are illegally occupying 78 acres of railway land. Area is commonly known as Gaffur Basti. App 50,000 people live meaning average people per home 11.45.

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

3. In 1907 the British department had assigned all the land to local municipal department as Nazul land saying no sale or perpetual lease will be allowed.

4. Locals claim they are rightful leaseholders. “All the occupants of the railways land, claim themselves to be a holder of the nazul land, by virtue of their respective leases.” Para 6 of 1

5. Issue kept simmering after 2007.

6. In 2013 a PIL was filed in UHC saying 29 acres of railway land encroached. It claimed that encroachment was hampering the extension of railway facilities including new trains to Haldwani and Kathgodam junctions. Note these stations are the gateway to beautiful Kumaon.

7. 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 1

8. In 2016 UHC asked authorities to remove encroachment within ten weeks. Para 62 of 1

9. “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 of 1

The Congress party ruled the state in 2016. Source

10. “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 1 and Indian Express report

11. Thus applications were invited by UHC from those affected by its November 2016 UHC order and considered by Division Bench. They were disposed of by the judgment of 22nd November, 2019.” Para 66 of 1 

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

13. Responding to this PIL, the Railways told 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.

14. According to Paras 72, 73 of 1 a joint survey was done and its report recorded by the UHC in its 7.4.2021 order.

Extracts, “The record shows a joint survey was conducted by the joint Team of Revenue Officials and the Official of the Railway Department and they have identified the unauthorised occupants, after demarcating the land which was found unauthorisedly occupied by them, and each and every unauthorised occupants, were duly heard by the said Joint Inspection Team, and the statement of as many as 1049 occupants, were recorded by the joint inspection team.” Also read para 176 of 1.

15. “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 18th May, 2022, a publication was issued in two local newspapers of wide circulation, inviting the intervention by any of the person, who may be effected by any order.” Para 83 of 1

16. In May 22, the UHC directed affected people to present ownership docs in 2 weeks.

17. Seven months later, the UHC order of December 20, 2022 asked residents to vacate in one week.

18. Jan 1, 2023 Railways issued notice to residents of the 4,365 homes to remove encroachments. Demolition would happen by January 7.

19. Locals approached Supreme Court on January 7, 23 who granted a stay against demolition and fixed next date of hearing as February 7.

Kathgodam Railway Station is where tourists arrive to see scenic Kumaon. Binsar. Pic 2012.  

Observations and Arguments by occupants 

1. First move to remove encroachment was made in 2007 by Railways.

2. In 2013 PIL filed on encroachment. 

3. In 2016 UHC asks encroachments to be removed.

4. The occupants of railway land plead that the land was not identified or demarcated in a joint survey. Plea is wrong because a survey was done. See point 14 above and para 73 of UHC order dated 20/12/2022.

5. The same order responds to claims of ownership of numerous occupants for e.g. Mr. Sarafat Khan claimed they are occupying the land which is in their possession for last over 50 years. “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 of 1

Another occupant claimed rights under a lease deed of 1940. The UHC held it invalid for four reasons one of which is that the deed was not registered as per its terms. Para 103 of 1

A third occupant argued that they are paying house and water taxes etc. hence they have title.

It is a settled position of law (1997 SC order) that, “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 of 1

6. Another argument. “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 is 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 of 1

Note, UHC order of 2016 for removal of encroachments was not acted upon. 

7. Occupants argued that the said land was nazul land. 

“The UHC rejected 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 definition of Nazul land see Para 25 of 1 Also, conferring of a right of management, in accordance with nazul rules, does not make the land of Haldwani Khas acquire the status of Nazul land.  Para 33 of 1

8. “It could be conclusively held that the provisions of Public Premises Act of 1971, would not be applicable in the light of the ratio of the Hon'ble Apex Court judgment. Para 95 of 1

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

I must admire the judges of the Uttarakhand High Court for such a detailed and comprehensive order. But the SC order of 3/1/2023 says occupants cannot be moved without a Rehabilitation Plan. Source Indian Express

Kausani is another lovely hill station in Kumaon.  

Question – Has SC before insisted upon a rehabilitation plan before uprooting people who illegally occupied land?

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

Some 1 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 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 of 1

The guidelines classified time period for occupiers to vacate premises under two options and gave two and six weeks’ time failing which the Western Railways could demolish the structures. Para 80 of 1

Here are some examples of SC orders on encroachments. 

1. Recently the SC ordered the demolition of illegal two multi-storeyed towers in NOIDA.  

The demolition was done to give a message to builders that all illegal constructions would meet the same fate.

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

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

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 A M Khanwilkar and then justice D Y Chandrachud, called for an amicable solution and asked the parties to discuss among themselves to arrive at a settlement, if possible.” 

It would be interesting to know if the SC called for an amicable solution before evicting illegal occupants of forest land in Faridabad!

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.” Source 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 search for an alternate location?

If courts facilitate alternative sites for illegal construction or encroachments, are they supporting encroachment of land?

3. According to this October 2019 Hindustan Times report, “The demolition of a 15^th 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 shrine was located in a protected forest.

The Supreme Court on Monday agreed to allow 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

4. 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 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 malafide intent. 

Our aim is to provoke thought. Encroachment or land grab is a crime. If SC insists on rehabilitation would it be rewarding or encouraging crime?

Should courts focus more on upholding the law i.e. the rights of the landowners?

Should matters of compassionate rehabilitation be left to the executive authorities as being beyond the remit of the courts whose sole function is to uphold the law?

Reflect and decide.

References

1. Uttarakhand High Court Order of December 20, 2022. For your convenience you can download Uttarakhand High Court Order. I have highlighted in yellow the key paras. To download click on PDF Credits to Indiankanoon.org

First published in Swarajyamag.com and Here