This article is limited to eviction under section 61 read with section 202 of the Gujarat Land Revenue Code, 1879. As land revenue is a state subject the laws may vary for each state.
Introduction
Encroachment can be defined as an act of entering/occupying any land or building or using such land to which the person is not entitled. The Encroachment is subdivided into two categories firstly Unauthorized Agricultural and secondly Unauthorized Non-Agricultural encroachments which can be further subdivided into residential, commercial, industrial, educational, and Sakhavati. Encroachment of government land is very prevalent in the State of Gujarat. Many poor, landless, shelter-less slum dwellers and migrant workers are seen residing on government lands for a long time. But time and again these people are evicted or live under constant fear of eviction by the concerned authorities. The decision of the Hon’ble Gujarat High Court, denying relief to the evicted slum dwellers and observing that “economically weaker section of society have a basic human and constitutional right to shelter but it doesn’t give them the right to encroach on government land” only aided to the fears of these people.
This is a set legal precedent that merely because a person has been in possession or residing on government land since long does not give them the right of ownership[1] and hence, the government has absolute power to evict any person illegally occupying the land and demolish any construction made thereof. In such a situation, the people are left with 2 alternate remedies i.e. (1) obtaining permission from the Mamlatdar before occupying government land (2) if already in possession, then submitting an application of land regularization to the Collector.
Procedure for Regularisation
1. Application to Mamlatdar
According to section 60 of the Gujarat Land Revenue Code, 1879, any person who is desirous of taking up or residing on an unoccupied government land must seek permission in writing from the Mamlatdar or Mahalkari. As it is already established in the code that if any person is found in occupation of such government land without valid permission the Collector can take corrective measures like imposing penalties and issuing eviction/demolition notices.
2. Application for Regularization to Collector
As per the Gujarat Government Regulation No. LEN-1065-8871-L dated 17.03.2967 r/w Gujarat Government Regulation No.LEN-2071-29508-L dated 15.06.1971 and Government Resolution dated 08.01.1980, if the Collector is of the opinion to regularize the encroachment, he should make a proposal to the Competent Authority as per the government instruction.
Show Cause Notice for Eviction
The whole process of eviction is regulated by Gujarat Land Revenue Code, 1879, The Gujarat Land Revenue Rules, 1972, and the Gujarat Revenue Tribunal Act, 1957. According to section 61 r/w section 202 of the Gujarat Land Revenue Code, 1879 r/w G.R.R.D No. 8833/43 dated 03.12.1951 if any person is found in wrongful possession of government land then the concerned collector or mamlatdar will serve a show cause notice requiring the concerned person to present himself and justify as to why he should not be evicted and any construction (if done) be demolished or crops (if grown) be fortified. In this process, two contingencies can arise: (1) a show cause notice can be issued by Collector or Mamlatdar calling upon the concerned person to show cause why an order of eviction should not be made (2) directly an order of eviction can be passed by Collector or Mamlatdar.
Remedies Against the Show Cause Notice
After receipt of such notice, the concerned person is firstly required to submit a land regularization application to the collector and secondly must submit his reply to show cause notice within the stipulated time praying to the Collector that, the application for regularization as submitted must be first entertained and only then any further proceeding must be initiated. Thereafter, Collector or Mamlatdar has to provide an opportunity of being heard to the concerned person. After considering the reply all the facts and circumstances an order can be passed. In Prabhubhai Naranbhai Chauhan v. State of Gujarat, when an order for vacation of land was passed without providing an opportunity to be heard, the order was set aside by the Hon’ble HC[2]. Hence, making it mandatory to issue a show cause notice to the acquirer of land and give them an opportunity of being heard.
Remedy Against an Order of Eviction.
It is a well-established principle of law that any party who is to be visited with any civil or criminal consequences must be heard. Making it mandatory for every department before taking such adverse action to serve a show cause notice. Hence, in case an order for eviction or demolition is directly passed by Collator the aggrieved person should first file an application of regularization before the collector and then he may proceed to file an appeal u/s 9 of Gujarat Revenue Tribunal Act, 1957 before the Revenue Tribunal.
But in case such an order is directly passed by the Mamlatdar then the first step of the aggrieved person remains the same i.e. filing of application of regularization before the collector and approaching the Collector u/s 203 of Gujarat Land Revenue Code, 1879 praying that he must consider his application of regularization and any adverse order passed by Mamlatdar must be quashed for being violative of the principle of natural justice.[3] Thereafter if is still unsatisfied the aggrieved can approach the Revenue Tribunal u/s 9 of Gujarat Revenue Tribunal Act, 1957.
Can Writ Petition be filed before High Court against the action of eviction of Mamlatdar?
In case such a person is facing some kind of difficulty in approaching the Collector or Revenue Tribunal then after submitting the application for regularization the aggrieved should directly approach the Hon’ble High for relief under Article 226 of the Constitution of India for setting aside the illegal and arbitrary orders of revenue officials/tribunal if passed without providing the opportunity of hearing and during the pendency of application of Regularization.
In the case of Mohanbhai Vithalbhai Patel v. Ravidarshan Co-operative Housing State[4] when no opportunity for a hearing was not provided to the party the order of the Collector was quashed by the court.
In the case of Prabhubhai Naranbhai Chauhan v. State of Gujarat[5], the HC quashed the order as Mamlatdar passed the order for vacation without providing an opportunity to be heard.
The Gujarat High Court in Nikhil G. Patel & others v. State of Gujarat[6] quashed the order of the Collector when it was found that the show cause notice issued by the Collector was without jurisdiction.
In Devabhai Devshibhai Moliya & State of Gujarat when the application for regularization was pending and was entertained by the Collector the Hon’ble High Court directed the Respondent to decide the application of regularization of the petitioner in accordance with law after considering all facts and circumstances.
View of Supreme Court
Supreme Court is of the opinion that Mamlatdar and Collector should have humanitarian and compassionate view while exercising the power of eviction and regularisation. Recently the case of Sitaramgiri Shivajigiri Gowswami v. The State of Gujarat[7], was presented before the Hon’ble Supreme Court wherein it was taken into consideration that the petitioner belongs to poor strata of society and is running pillar to post to save his small shelter hence, it was directed by the Hon’ble Supreme Court that the Collector, Jamnagar to first decide the application of regularization as submitted by the Petitioner in accordance to the law within a period of 2 months.
Conclusion
The issue of land encroachment is very prevalent, and the main victims are the poor slum dwellers or migrant workers who have been residing on such government land due to scarcity of appropriate shelters. Hence, they are left with very few options of either getting a regularization order from the collector/mamlatdar or getting relief from judicial forums in order to save their small shelters.
[1] Bhanushali Kishorbhal Parumal & 94 v. State of Gujarat & others 23 (2010) GHJ
[2] Special Civil Application No. 9656 of 2020
[3] Principle of Natural Justice- There are two principles included in “Principle of Natural Justice” i.e. (1) Nemo Judex in Causa Sua which means no one should be made a judge in his own cause and rule against bias and (2) Audi Alteram Partem which means to hear the other party, or no one should be condemned unheard.
[4] Latters Patent Appeal No. 278 of 2003.
[5] Special Civil Application No. 9656 of 2020.
[6] Special Civil Application No. 6010 of 2012.
[7] Special Leave to Appeal No. 24112 of 2022.
