Monday, December 24, 2012

In Other Courts, New Delhi: Jivasharam v/s Gaon Sabha Rajkori & Ors...30th July 2012


Appeal No. 11/05 & 12/05
Jivasharam v/s Gaon Sabha Rajokri & Ors.

IN THE COURT OF DY. COMMISSIONER & COLLECTOR
DISTRICT SOUTH WEST, KAPASHERA, NEW DELHI

Appeal No. 11/05

Jeevashram .................. Appellant

Vs.

Gaon Sabha Rajokri .................... Respondent

Appeal No. 12/05

Jeevashram .................... Appellant

Vs.

Gaon Sabha Rajokri .................... Respondent


JUDGEMENT


This shall dispose of the appeals dated 21/02/2005 filed by the appellant herein above against the order of ejectment dated 16/02/2005 of the SDM/RA (Vasant Vihar) in case No. 214/RA/96 under section 86-A of the DLR Act, 1954 and in case No. 69A/RA/97 for dismissing the case u/s 85 of the said Act in respect of the suit land which is a part*of Khasra No. 446 (40-18) of village Rajokri. Aggrieved by the said order the appellant has preferred the appeals before this Court.


The case of the appellant is that the appellant is a charitable hospital and a shelter home, which is being run and managed by Poddar Foundation, a registered charitable trust. A notice under Section 86 A was issued by the Ld. SDM/RA vide order dated 04/09/1996 on a report of Patwari dated 06/05/1996. That the appellant filed its objections to the notice under Section 86A of the Act, interalia taking the
following objections:

a) That the appellant has already filed a petition under Section 85 of the Act on 22/08/1997 in respect of the land comprised in Khasra No. 446 (4-0) situated in the revenue estate of village Rajokri, New Delhi and the petition under section 85 was filed prior in time and the petition of the Gaon Sabha under section 86A of the Act is liable to be stayed, till the disposal of the said petition.

b) That the Halqua Patwari has no power under Section 86A of the Act and Rule 170 of the Delhi Land Reforms Act to inform the SDM/RA about the illegal occupation and the show cause notice does not mention about the date of alleged illegal occupation.

c) That the ejectment proceedings are not in accordance with Rule 170 of the Delhi Land Reforms Rules.

d) That the proceedings are hopelessly time barred, as the limitation for initiation of proceedings under Section 86A of the Act as mentioned in Schedule-1 is three year from the date of occupation. In the present case, the limitation expired on 30/06/ 1993 as the appellant is in possession of the land since 15/07/1990

e) That the object of the appellant are general public utility and charitable and are within the meaning of word "charitable purpose” as defined in Section 3 (3) of the Act.

f) That the Respondent is a veterinary hospital and a shelter home for providing shelters to animals and the user is relating to animal husbandry.

That a reply was filed by the Respondent/Gaon Sabha interalia taking an objection that the Respondent is using the land for non agricultural purposes. The appellant filed a rejoinder interalia submitting that the land is being used for agriculture and related purposes under Section 22, 3 (13) and 3(3) of the Act. That the matter was argued sometime in the year 1998 and written arguments were filed by the appellant. That vide the impugned order dated 16/02/2005, the Ld. SDM/RA passed an order of ejectment against the appellant from the land in question and simultaneously dismissed the petition of the appellant under Section 85 of the Act as not maintainable. It is contended that the impugned orders are wholly illegal, unsustainable in law and are liable to be set aside. The Ld. SDM/RA did not appreciate the position of law. The material on record, particularly the revenue documents, was totally brushed aside by the Ld. SDM/RA while passing the impugned orders. The Ld. SDM/RA has not given any reasons in support of his conclusions. The Ld. SDM/RA acted in haste as he wanted to terminate the proceedings.

It is further argued that the Ld. SDM/RA did not appreciate that no proceedings under Section 86 A could be initiated on report of Halqua Patwari who has no power under the Act to inform the SDM/RA about the alleged illegal occupation as it is only the duty of the Pradhan or a Member of Gaon Panchayat to report about the alleged illegal possession. In the instant case, no action has been initiated either by the Gaon Sabha or suo motu by the Ld. SDM/RA.

Further, it is stated that the Ld. SDM/RA erred in totally ignoring the plea that the proceedings under Section 86A are hopelessly time barred as the limitation for initiation of proceedings under Section 86A of the Act as mentioned in Schedule I Column 4 is three years from the date of occupation and the said limitation expired on 30/06/1993. The Ld. SDM/RA did not appreciate that the proceedings under Section 86-A of the Act are barred by limitation and as per law, if no process under Section 84 & 86A have been initiated within the period of limitation, then bhoomidari rights under Section 85 of the Act have to be automatically conferred on a person in possession of the land.

That, Ld. SDM/RA failed to appreciate that the activities of the Appellant are covered within the definition of word "animal husbandry". Because the Ld. SDM/RA totally ignored the plea of the appellant that it is using the land for breeding, rearing and medical care of the animals. The land over which the the Appellant is in possession is still a land within the meaning of Section 3 (13) of the Act, which means land held or occupied for purposes connected with agriculture or horticulture or animal husbandry etc. and includes buildings appurtenant thereto. Section 3 (12) of the Act defines improvements which includes a dwelling house erected on the holding and connected with agriculture , horticulture or animal husbandry etc. and which is a work, which adds materially to the value of the holding and is consistent with the said purposes.

Because the Ld. SDM/RA erred in dismissing the case of the , appellant on maintainability, without permitting the appellant to lead evidence, and without appreciating that the case is pending for the last 8 years. The appellant would have led cogent and convincing evidence and will prove from documents and by leading oral evidence that they are using the subject land for agriculture and related purposes and they are in possession of the land for last more than 15 years, which fulfils the requirements of Section 85 of the Act. The action of the Ld. SDM/RA is violative of principles of natural justice.


The appellant ' s counsel has further contended that the Hon. High Court of Delhi in case of Juglal & Ors (CW No.1150/2000) held that eviction cannot be ordered without allowing the party to lead the evidence . He has also contended that in case of Balbir Singh Vs. ADM & Others the Hon. High Court of Delhi has upheld the claim of certain rights to persons who are in possession of land without rights. Para 32 of the judgement is also quoted . The appellant has also relied upon the Khasra Girdawari from the year 1991 to 1995 which shows entry of hospital. It is further prayed by the appellant that his written arguments and grounds of appeal be treated as arguments & his application under appendix VI, paragraph 28 of Delhi Land reforms Rules be decided.


Case of the respondent is that the appellant is encroaching upon the Govt. land without authority. The claim of the appellant is misplaced and he has encroached upon the said land and even in Khasra Girdawari there is no entry in remarks column which shows that the information in the Khasra Girdawari may not be authentic . It is also argued that the appellant is in illegal non-cultivatory possession of the suit land and the same is being used for hospital purpose which by any stretch of imagination cannot be said to be agriculture or allied activity. Therefore, the petition was dismissed by the Ld. RA and the appeal is also liable to be dismissed.


After perusing the material on record and hearing both the parties it is observed that, firstly, the appellant is in unauthorized non-cultivatory possession of the suit land and claiming that the activity of running the veterinary hospital is covered within the ambit of the Animal Husbandry as defined in the section 3(12) of the Delhi Land Reforms Act, 1954 . However, neither the definitions & meanings contained in written arguments nor the provisions of per section 3(12) of the DLR Act, 1954 covers the hospital under the ambit of the agriculture or connected activity or the improvement thereon. The arguments of the appellant does not hold good in this regard . Secondly, the evidence in the form of the Khasra Girdawari relied upon by the appellant is not having any entry recorded in which casts a doubt on the authenticity of the information thereon. Therefore, the plea of the time barred in respect of both the proceedings under section 85 and 86A of the DLR Act, 1954 ground. Thirdly, the ground of the appellant that he was not given the chance to lead the evidence by the RA/SDM is also lacking any substance because the appellant (respondent therein ) has been duly heard by the Ld. RA before passing of the order and the ground of ejectment in the impugned order is on the point of law. The RA has heard the appellant and also appreciated the arguments produced before him and only after that arrived at the order of ejectment . Thus, I do not-find-any merit in the application under appendix VI, paragraph 28 of Delhi Land Reforms Rules filed by the appellant and the same is dismissed accordingly. Fourthly, regarding the point that the proceedings are not in accordance with the Rule 170 of Land reform Rules because only Gram Sabha or Panchayat can make report about illegal possession also devoid of merits as the Revenue Assistant can initiate the proceedings u/s 86A of the DLR Act upon report of not only Gram Pradhan or member of Panchayat but otherwise also. Fifthly, regarding the issue of charitable purpose, without going into the merits of the claim of charitable activities it is concluded that any charitable activity as defined in the act needs to be in consonance with the other provisions of the Act and if the activity is otherwise violative of the general provisions of the Act then the benefits of the charitable cannot be claimed for the same. Last but not the least, the appellant has been encroaching upon the Gaon Sabha land since a very long time and very strangely continue to do so even today using various tactics. This is the situation foreseen by the Hon Supreme Court in the judgement passed in Jagpal Singh & Ors Vs. State of Punjab and Ors in Civil Appeal No. 1132/2011 and SLP (c) No. 3109/2011 and therefore emphasized that the encroachers and illegal occupants on the Gram Sabha land needs to be evicted and the Gram Sabha land needs to be retrieved and restored to the Gram Sabha. Hence the order:


ORDER

In view of the observations made in the judgement I am of the considered opinion that the appeals dated 21/02/2005 filed by the appellant herein above against the order of ejectment dated 16/02/2005 of the SDM/RA (Vasant Vihar) in case no. 214/RA/96 under section 86-A of the DLR Act, 1954 and in case no. 69A/RA,/97 for dismissing the case u/s 85 of the said Act in respect of the suit land which is part of Khasra No. 446 (40-18) of village Rajokri are devoid of merits. Accordingly, the orders of the SDM/RA are upheld and the appeals are dismissed with the directions to the BDO (South West) to take further necessary action in a time bound manner.


Given under my hand and seal of this court on this 30th day of July, 2012


Vikas, Anand, IAS
Dy. Commissioner & Collector


Copy to:

1. SDM, Najafgarh /Vasant Vihar
2. BDO, South West
3. Both the Parties



No comments:

Post a Comment