Monday, December 31, 2012

In Other Courts, New Delhi: Shiksha Bharti Educational Socicty v/s GS Palam and Ramesh Kurnari v/s GS Palam...31st October 2012

Appeal No. 162 /06: Shiksha Bharti Educational Socicty v/s GS Palam
Appeal No. 33/07 : Ramesh Kurnari v/s GS Palam


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

Appeal No. 162/06

Shiksha Bharti Educational Society & Ors ........................................... Appellants

Vs.

Gaon Sabha Palam . ............................................. . Respondent

Appeal No. 33/07

Ramesh Kumari .......................................... Appellant

VS.

Gaon Sabha Palam ......................................... Respondent

JUDGEMENT

This shall dispose of the appeals dated 26/12/2006 and 19/02/2007 filed by the appellants herein above u/s 185 of the DLR Act, 1954 against the common order dated 08/11/2006 of the SDM/RA (Najafgarh) in Case No. 283/2000 & 101/2003 issued u/s 85 & 86-A of the DLR Act, 1954. Vide the said order the SDM/RA has dismissed the application u/s 85 of the DLR Act, 1954 and passed the ejectment order u/s 86A of the DLR Act, 1954 against the appellant (herein above) in respect of suit land bearing Kh. No.28/3/2min(0-5), 28/4/2min(0-7), 5/2min(0-3-04), 6/lmin(0-19), 7/2(0-16) and 126(1-11) situated in village Palam. Aggrieved by the said order appellant has preferred an appeal before this court.

The parties were heard at length. After hearing the appellant and perusing the material on record it is seen that the appellant herein above is claiming to have encroached upon the suit land which is a Govt. land since long time. It is the case of the appellant that it is in possession of the suit land since 1980 and hence he has acquired the Bhumidari Rights through adverse possession as the proceedings are barred by limitation. However, the Revenue Assistant has failed to appreciate this fact of possession of more than three years and only held that the appellant herein is encroaching upon the precious Govt land and thus dismissed the application under section 85 of the DLR Act, 1954 and also ordered for ejectment u/s 86A.

The case of the respondent is that the suit land is Gaon Sabha land and the appellant is encroaching upon the same and the proceedings under section 86A of the DLR Act, 1954 are within time and there is nothing on record to show any possession prior to three years from the date of initiation of proceedings.


After hearing the parties and perusing the material on record I am of the considered opinion that there is nothing on record which shows any infirmity in the order of the trial Court. The only plea taken by the appellant is that he is in the possession on Govt. land for long time and therefore he should be declared Bhumidar u/s 85 of the DLR Act, 1954 on the basis of adverse possession. In this regard, it is observed that the Hon'ble Supreme Court in the matter Hemaji Waghaji Jat v/s Bhikhabhai Khengarbhai Harijan & Others (AIR 2009 SC 103) has held that-

"The law of adverse possession which ousts an owner on the basis of inaction within limitation is irrational , illogical and wholly disproportionate. The law as it exists is extremely harsh for the true owner and a windfall for a dishonest person who had illegally taken possession of the property of the true owner. The law ought not to benefit a person who in a clandestine manner takes possession of the property of the owner in contravention of law. This in substance would mean that the law gives seal of approval to the illegal action or activities of a rank trespasser or who had wrongfully taken possession of the property of the trite owner." Further the Apex Court has gone on to emphasize as to "why the law should place premium on dishonesty by legitimizing possession of a rank trespasser and compelling the owner to loose its possession only because of his inaction in taking back the possession within limitation. "

Besides this, as per the order of the Hon. Supreme Court in Jagpal Singh & Ors Vs. State of Punjab and Ors in Civil Appeal No. 1132/2011 and SLP (c) No. 3109/2011 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. In view of the above, I am of the considered opinion that the appeal of the appellant herein above lacks merit.


It need not be emphasized here that the appellant has continued to illegally occupy precious and invaluable Govt. land and has adopted multiple dilatory tactics and frivolous excuses to extend his illegal occupation and encroachment. The Hon'ble Supreme Court has held in Salem Advocate Bar Association, Tamil Nadu vs. Union of India (6 SCC 344:AIR 2005 SC 3353) that costs shall be imposed in a practical and realistic manner. The purpose of costs is not only to indemnify the affected party rather also to create a deterrent effect with respect to frivolous malafide and unnecessary suits or proceedings, The Courts shall refrain from awarding nominal costs, rather real costs and in proper cases even excessive costs shall be awarded. Hence the order:


ORDER


In view of the observations made in the judgement, the appeals dated 26/12/2006 and 19/2/2007 filed by the appellants hereinabove u/s 185 of the DLR Act, 1954 against the common order dated 08/11/2006 of the SDM/RA (Najafgarh) in Case No. 283/2000 & 101/2003 issued under section 85 & 86A of the DLR Act, 1954 is hereby dismissed. The SDM/RA, Najafgarh and BDO, South West to take further necessary action in time bound manner for taking possession of the suit land within one month.


Further, this illegal encroachment for a long period and the dilatory tactics to further prolong it deserves to be heavily penalized and hence, in view of the aforesaid judgement, I deem it fit to impose cost of Rs. 20,00,000/- (Rs. Twenty lakhs) on Smt. Ramesh Kumari the appellant hereinabove to be recovered as arrears of land revenue.

Given under my hand and seal of this court on this 31st day of October 2012.


Vikas Anand, IAS
Dy. Commissioner & Collector

Copy to :

1. SDM, Najafgarh
2. BDO, South West
3. Both the parties




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