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In 2011, a landmark Supreme Court judgement pertaining to the encroachment of a pond by a person named Jagpal Singh had sent ripples across the country. The pond was argued to be belonging to the community rather than private property and the judgment favoured this argument.
Over the years, the judgment became the basis of evicting owners from similarly disputed properties.
However, a new analysis published by Land Conflict Watch, a research consultancy firm on November 7, has revealed that the judgment has been largely used to merely justify evictions without passing directions to protect the common land.
The analysis studied 325 High Court cases that cited the judgement and found that the rights of the citizens or ‘alleged encroachers’ were violated and more importance was given on identifying the type of land rather than finding details of the nature of the encroachment or the identity of the encroacher.
The judgment allowed greater and wider powers to the government to remove illegal occupation.
The report finds that out of the 1,630 analysed cases, in 52.27 per cent of the cases the courts directed to free the land from the encroachers while in 64.25 per cent cases, the rights of the encroacher such as the right to a fair hearing, advance notice, and the right to housing, were rarely discussed and were not taken into account.
In at least 85 cases, the encroachers were not issued prior notices before evictions.
The cases where the rights of the encroachers were not heard, the evictions were significantly higher to about 58 per cent.
Despite the SC judgment allowing regularisation of the land in exceptional cases such as the needy or backward sections of the society, only 13 per cent of the cases included discussions on encroacher’s appeal for regularisation.
“However, out of the 214 cases which involved any discussion on regularisation, 125 cases (58 per cent) saw evictions being allowed in the case. The most frequently occurring nature of encroachment in such cases was for housing purposes (in 58 cases),” the report noted.
It added that due to the nature of land frequently being classified as water bodies in such cases, regularisation was not allowed and eviction was directed.
The states, despite having regularisation policies, the encroachers were denied to avail benefits of these policies.
“Twenty-five out of the aforementioned 125 cases involved either indigent persons 57 or persons from Scheduled Castes/ Scheduled Tribes/ landless communities being evicted despite applying for regularisation,” the report said.
The encroachers in the case have claimed to have resided over the land for many years in their demand for regularisation.
The report also pointed out the facts about encroachment stating that about 57 per cent of the cases failed to furnish details on the nature of the encroachment while 12 per cent of the cases mentioned unauthorised construction on the dusted land. Nearly 33 per cent of the cases alleged the encroacher seeking possession of the land.
In cases which had data available, the report found that the housing is the largest category to have fallen into encroachment with 14 per cent followed by cultivation, private property, commercial and industrial and shops among others.
Though housing topped the nature of encroachments, the cases did not see any discussion on the right to housing of the said encroachers.
The rights of encroachers heard in about 49.7 per cent, did not include substantive right to shelter, life and dignity violating the Article 21 of the Indian Constitution.
It said that the village and government land were the largest categories of encroached land at 30 per cent 21 per cent respectively.
The village land primarily includes abadi (inhabited or populated) land and shamlat deh (village common land). The government land included non-agricultural and or poramboke land. Poramboke is a term designated for land that is not included in revenue records and is owned by the community as a whole.
The report also stated that only 348 out of the 1630 cases were found to mention the encroacher's identity.
The largest category of encroachers were identified as people from marginalised communities such as Scheduled Castes, Scheduled Tribes, landless persons.
The report stated that the Jagpal Singh judgment explicitly mentions that an exception can be made when encroachers are from these categories, Similarly, one of the largest categories observed are indigent persons or slum dwellers.
On the contrary, commercial or industrial companies are found to have encroached on public land in 36 out of the 348 cases. Interestingly, the government was also found to encroach land and water bodies.
“In 25 cases (7.18 per cent of 348 cases), the court alluded to the alleged encroacher as ‘influential persons’, persons from ‘superior class’ or similar. In one of these cases, the Court referred to the individual as a ‘rank land grabber having encroached upon huge public land of about 21,000 square feet’ the report said.
This category also covers state officials or their relatives trying to usurp the land.
Further analysis of certain state policies revealed that some state governments did have progressive policies for regularisation of encroachment based on the socio-economic status of the encroachers prior to the 2011 order.
But, succumbing to the pressure of the Supreme Court in 2011, several states drafted new schemes with a fresh emphasis on eviction of encroachers.
“Few retained provisions which would create exceptions for the landless/ SCs and STs,” it noted.
A further study of the database found that out of 757 ongoing conflicts recorded till March 2023, 131 are related to encroachment in some way.
These conflicts mainly included a community of people as a single party or included public interest and excluded disputes between private parties.
At the time of writing this report, six conflicts had ended.
“Out of these 131 conflicts regarding encroachment, 117 (89 per cent) involve common land in some way. These conflicts affect a total of 12,93,762 (12.9 lakh or 1.3 million) people and span over 313432.79 (3.1 lakh) hectares of land,” the report mentioned.
In 23.9 per cent of the conflicts pertaining to conservation and forestry, it was found that officials are evicting traditional forest dwellers by labelling them as encroachers.
The rights of these forest- dwelling communities are recognised under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 which is commonly known as the Forest Rights Act or the FRA.
This puts FRA in a deadlock with the landmark judgment.
“These rights comprise of the right to hold and live on forest land, the right of ownership, collection and usage of minor forest produce and most significantly, the right to not be displaced from their land without due compensation,” the report noted.
In conclusion, the report stated that the court orders such as Jagpal Singh aim to protect the common lands from encroachments, considering that the ownership and management of the land lies with the government.
However, the blanket implementation of the order only seeks to alienate the communities dependent on such land by forcibly evicting them from their housing and place of livelihood, it stated.
“Further, by creating encroachers out of individuals who have received the land through allotment, sale or other valid legal proceedings, the state obscures its own role in the entire process,” it noted.
The report seeks an imperative robust system to protect the evictees from undue dispossession of land until reason orders are delivered by the government authorities and courts.