HP High Court Declares S. 163-A HP Land Revenue Act As Unconstitutional; Directs Removal Of Encroachments On Govt Land By Feb 28, 2026

In its order, a Bench of Justice Vivek Singh Thakur and Justice Bipin Chander Negi observed that the impugned provision is a 'legislation for a class of dishonest persons' which seeks to regularize all illegal encroachments, and thus, is violative of Article 14 of the Constitution.

The division bench added that the provision in question defeats the very purpose for which the Statute was created and violates the very edifice of the Principal Statute (specifically S. 163 of the 1952 Act), which provides for a mechanism for removing encroachment from government land.

"It is destructive of the aim and object of the Parent Statute; it defeats its laudable object; it defies the constitutional provisions; it is demonstratively and excessively contradictory and mutually destructive. Such a statutory provision cannot be permitted to remain on the statute book", the bench remarked.

In an effective direction, the Court also directed the State Governemnt to ensure removal of encroachment on Government land, in accordance with law, by initiating suitable proceedings on or before 28th February, 2026.

The case of the petitioners and a brief about the provision

In a 2002 petition filed by Punam Gupta and Hardesh Arya, the constitutional validity of Section 163-A was challenged on the grounds that the provision encouraged illegal occupation of government land.

As stated, the provision empowered the State Government to make rules "regarding the regularisation of the encroachment on Government land". It allowed regularization of encroachments on government land by granting up to 5 bighas to landless occupants and up to 20 bighas in select cases.

During the hearing in the matter, the Court noted that, as per the State's own admission, there were approximately 57,549 encroachments over 10,320 hectares of government land, and 1,67,339 applications had been received for regularisation until 2002 itself.

High Court's observations

In its 44-page order, the Court observed that the object of the impugned provision is violative of Article 14 as it sought to treat law-breakers at par with law-abiding citizens and thus was 'arbitrary, capricious, and prohibited'.

It noted that the provisions lacked any 'intelligible differentia' that could have a nexus with a lawful object and, therefore, failed the test of valid classification under Article 14.

The Bench was also of the view that the Court cannot be a silent spectator in such cases and that it was bound to perform its constitutional duty to ensure that the public property is not frittered away by unscrupulous elements in the power corridors.

In this regard, the court opined that the provision promotes dishonesty and encourages violation of law and that the officials had failed to discharge their duties to prevent illegal encroachment across the state as the functionaries adopted 'an ostrich like' attitude and approach.

"Any indulgence on the part of the State/ Legislators, in protecting such dishonesty, would lead to anarchy and destroy the democratically established institutions, also resulting into indiscrimination. This is manifest arbitrariness. Also, it is excessive and capricious", the Court said.

The bench also stressed the solemn duty of the State to protect natural resources and to use them in the interest of the country and not in private interest.

The Bench noted that although the government had attempted to justify Section 163-A as a means to uplift small and marginal farmers and generate revenue, its real effect was to legalise an illegality.

It held that any attempt to regularise encroachments violated Article 21 when read with Articles 48-A and 51-A(g), as it disturbed the environment and endangered future generations' rights.

The Court made it clear that all encroachments must be removed, and no rules shall be framed under Section 163-A, which stands struck down.

Against this backdrop, the petition was allowed and disposed of with the following directions:-

(1) Section 163-A of H.P. Land Revenue Act is manifestly arbitrary and unconstitutional and as a consequence thereof, Section 163-A of H.P. Land Revenue Act and Rules framed thereunder (Section 163-A) of the said Act are quashed;

(2) Taking into account the magnitude of encroachments made on Government land in the State of Himachal Pradesh, the State Government should consider amendment in the law pertaining to “criminal trespass” by bringing it in consonance with the State amendments as have been made in the State of Uttar Pradesh, Karnataka and Orissa;

(3) The respondents are directed to ensure removal of encroachment on the Government land, in accordance with law, by initiating suitable proceedings against encroachers and taking such proceedings to its logical end as expeditiously as possible preferably on or before 28th February, 2026.

(4) Any stay/protection granted against removal of encroachment for pendency of this petition or any other ground including the ground with reference to Rule/Draft Rules notified by the Government or regularization of encroachment including Draft Rules notified in the year 2017 shall stand vacated and any such order is declared ineffective and unenforceable against the proceedings pending or to be withheld for removal of encroachment from the Government land.

(5) Directions issued in CWPIL Nos. 9 of 2015 and 17 of 2014 in para 35 of judgment dated 8.1.2015 are extended for removal of encroachment from all type of Government land/premises including the proceedings initiated or to be initiated under H.P. Public Premises Act and/or Section 163 of H.P. Land Revenue Act as well.

(6) The respondent/State is also directed to make suitable changes in law by amending relevant Act and Rules appropriately to assign duty on the office bearers of concerned Nagar Panchayat, Nagar Parishad and Nagar Nigam as well as Executive Officer(s)/Commissioner(s) to report the encroachment, to take action for removal of encroachment and regarding consequences of violation of such duty.

(7) Other than the aforesaid, insofar as removal of encroachments from Government land is concerned, the same has been dealt with under Section 163 of the H.P. Land Revenue Act. The said provision provides for the encroacher to claim title thereupon in terms of the law of adverse possession. In light of the law laid down by the Apex court in State of Haryana vs. Mukesh Kumar, (2011)10 SCC 404 and Ravinder Kaur Grewal vs. Manjit Kaur (2019)8 SCC 729, the State Government should consider removal of the provision from Section 163 of the H.P. Land Revenue Act, whereby an encroacher can claim title thereupon in terms of the law of adverse possession.

(8) In cases, where land has been acquired for public purpose including Roads/Path vesting its possession to the Court/Public Authority and previous owner has either not vacated the land or property to the Government/Public Authority or re occupied such acquired land by raising construction or otherwise, during eviction from such possession/encroachment, plea of adverse possession shall not be available, instead such possessor/encroacher apart from cost of removal, shall also be liable to pay use and occupation charges as well as receiving of benefits deserved from such land/property.