ISMAILBHAI I. KANSARA (D) THROUGH LR versus STATE OF GUJARAT & ORS.

Citation: [2021] 8 S.C.R. 39 · Decided: 13-07-2021 · Supreme Court of India · Bench: SANJAY KISHAN KAUL · Disposal: Dismissed

Judgment (excerpt)

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ISMAILBHAI I. KANSARA (D) THROUGH LR
v.
STATE OF GUJARAT & ORS.
(Civil Appeal No. 2851 of 2015)
JULY 13, 2021
[SANJAY KISHAN KAUL AND HEMANT GUPTA, JJ.]
Displaced Person (Compensation and Rehabilitation) Act,
1954: ss. 19(2)(b), 20 –  Power to vary or cancel leases or allotment
of any property acquired – Appellant-encroacher on evacuee
property served with eviction notice u/s. 19(2)(b) – Writ petition by
the appellant, challenging the eviction order – Dismissed by the
High Court holding that it is an evacuee property, thus, the appellant
has no right over it and is not entitled to claim regularization of his
possession – Upheld by the Division Bench – On appeal, held:
Encroacher does not have any right of regularization of an evacuee
land in the presence of a displaced person entitled to allotment in
order to satisfy the objective of the Act – Evacuee land can be
allotted only to a displaced person alone – Allotment to non-displaced
person can be considered only after all the displaced persons have
been settled – On facts, perusal of the Circular dated 20.06.1978
shows that an encroacher can be considered for regularization of
his possession only if there is no displaced person in terms of clause
III – In terms of clause III, the Chief Settlement Commissioner allotted
the land to Respondent No. 4 since he had balance verified claim –
Appellant was ordered to be evicted being an unauthorized occupant
of evacuee land – Thus, the clause to allot evacuee land to
encroacher in the government policy dated 20.6.1978 is beyond
the scheme and purpose of the Act – However, if any allotment has
been made to an encroacher and had attained finality, the same
will not be re-opened – Possession of the land was taken over by
the Government on 24.01.2014 – As such, the claim for restoration
of possession by an encroacher, is wholly untenable.
Dismissing the appeal, the Court
HELD:1.1 The appellant filed the writ petition soon after
the eviction order was served upon him, wherein he made
reference to the previous notice. He had further stated that he
[2021] 8 S.C.R. 39
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SUPREME COURT REPORTS
[2021] 8 S.C.R.
appeared before the Collector and also made an application for
purchase of land in question. Though, he has stated that the
eviction notice was dropped, no such order has been produced
or referred to in the written submission filed. The stand is that
his purchase application could not be considered on account of
the pending writ petition. Thus, the appellant had received show
cause notice for unauthorized possession of an evacuee property.
The submission that eviction order was passed without notice is
factually incorrect. [Para 6][43-E-G]
1.2 The relief claimed by the appellant in the writ petition
was to quash and set aside the eviction order. The appellant has
not sought any relief qua allotment or regularization of his
possession of the land in question. Therefore, substantially, the
claim of the appellant before the High Court was to examine as
to whether the order of eviction passed was suffering from any
illegality or irregularity which could have warranted interference
in the writ proceedings. Since the claim of the appellant was
limited only to challenge the eviction order and the fact that the
possession of the appellant was not regularized before
23.06.1992, therefore, there is no illegality in the eviction notice
issued against the appellant. Hence, in terms of Section 19 of the
Act, the order of eviction passed cannot be said to be illegal or
invalid. [Para 7][43-H; 44-A-C]
1.3 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 which is in respect of encroachment
on public land 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. A perusal of the Circular
dated 20.6.1978 would show that an encroacher can be considered
for regularization of his possession only if there is no displaced
person in terms of clause III. In terms of clause III, the Chief
Settlement Commissioner allotted the land to Respondent No.
4 on 12.10.1990 since he had balance verified claim. The appellant
was also ordered to be evicted being an unauthorized occupant
of evacuee land. It cannot be said that the appellant was required
to be heard before passing such an order as the appellant is not
claiming any right being a di

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