‘Legislation for a Class of Dishonest Persons’: HP High Court Strikes Down S.163-A of Land Revenue Act Allowing Regularisation of Encroachments - 2025-08-11

HP High Court Strikes Down Law Regularising Encroachment on Govt Land, Calls It ‘Manifestly Arbitrary’

Shimla: In a landmark decision safeguarding public property, the Himachal Pradesh High Court has struck down Section 163-A of the HP Land Revenue Act, a provision that empowered the state government to regularise encroachments on government land. A Division Bench of Justice Vivek Singh Thakur and Justice Bipin Chander Negi declared the provision "manifestly arbitrary and unconstitutional," branding it as "legislation for a class of dishonest persons."

The court delivered the judgment in a long-pending Public Interest Litigation (PIL) filed in 2002 by Punam Gupta, which challenged the constitutional validity of the controversial section. The ruling vacates all stays on eviction proceedings and sets a deadline of February 28, 2026, for the state to remove all encroachments on government land.

The Case at Hand

The petition questioned the legality of Section 163-A of the HP Land Revenue Act, which stated: "Notwithstanding anything contained in Section 163 of this Act, or any other law for the time being in force, the State Government may make rules regarding the regularisation of the encroachment on Government land."

The court noted the staggering scale of the issue, with the state's own data revealing approximately 57,549 cases of encroachment covering over 1,23,000 bighas (around 10,320 hectares) of government land.

State’s Justification vs. Court’s Scrutiny

The state government defended the provision on several grounds, arguing it was intended to: - Make the land holdings of small and marginal farmers economically viable. - Generate revenue for the state exchequer through penalties. - Serve as a legal exception to Section 163, which provides for the removal of encroachments.

The High Court systematically dismantled these arguments. It observed a glaring contradiction in the government's legislative intent. While the Statement of Objects and Reasons claimed to make encroachment laws more "stringent," it simultaneously introduced Section 163-A to "legalise an illegality," an approach previously condemned by the court in the 1997 case of Raj Kumar Singla v. State of H.P.

A Violation of Constitutional Principles

The Bench held that Section 163-A fundamentally violated several constitutional and environmental law principles.

• Violation of Article 14 (Right to Equality): The court found the law to be a classic case of arbitrariness. It stated, "By condoning the illegal acts of the violators... State intends to treat such law breakers equal to those persons who abide by the law. This is arbitrariness, because by treating un-equals alike, the State is violating Article 14 of the Constitution of India." The court added that the provision was "legislation for a class of dishonest persons, which is also prohibited."

• Breach of Public Trust Doctrine: The judgment heavily invoked the Public Trust Doctrine, emphasizing that the state holds natural resources in trust for the people and has a solemn duty to protect them, not fritter them away for private interests. The court asserted, "The natural resources are vested with the Government as a matter of trust to the people of India. It is the solemn duty of the State to protect the natural resources and to use the same in the interest of the country and not in private interest."

• Against Environmental Jurisprudence: The court underscored that the law defied principles of "Sustainable Development" and "Inter-Generational Equity," as well as the constitutional mandates under Articles 48-A (State's duty to protect the environment) and 51-A(g) (citizen's duty to protect the environment).

Promoting Dishonesty and Lawlessness

The judgment came down heavily on the state's failure in governance, which allowed encroachments to flourish.

"It promotes dishonesty and encourages violation of law. Significantly, no action stands taken against the erring officials, who, in connivance, allowed such encroachments to happen, throughout the State... The functionaries adopted an ostrich like attitude and approach."

The court also pointed to the Supreme Court's critical view of the law of adverse possession, which it termed "archaic" and a "premium on dishonesty," and recommended that the state government consider removing the provision from Section 163 of the Act that allows an encroacher to claim title through adverse possession.

Final Directions and Implications

The High Court not only quashed Section 163-A and any rules framed thereunder but also issued a comprehensive set of directions to ensure the protection of public land. Key directives include:

• Strict Removal of Encroachments: The state must remove all encroachments from government land by February 28, 2026.
• Vacation of Stays: All interim orders protecting encroachers, including those based on a 2017 draft notification for regularisation, stand vacated and are declared unenforceable.
• Strengthening Anti-Encroachment Laws: The court recommended that the state amend its criminal trespass laws to make them more stringent, similar to amendments in Uttar Pradesh and Orissa.
• Accountability of Officials: The detailed monitoring and reporting mechanism established in previous PILs (CWPIL Nos. 17 of 2014 and 9 of 2015) was reinforced and extended to all government lands.
• No Adverse Possession on Acquired Land: The court clarified that the plea of adverse possession will not be available to those who re-occupy land acquired for a public purpose.

This judgment serves as a powerful judicial check on executive and legislative actions that seek to legitimize illegal acts at the cost of public resources and environmental integrity.