Tuesday, January 1, 2013

In Other Courts, New Delhi: Jagdish Kaur & Ors v/s Gaon Sabha Kapashera...5th November 2012

Appeal No. 55/07 - Jagdish Kaur & Ors v/s Gaon Sahha Kapashera
IN THE COURT OF DY. COMMISSIONER & COLLECTOR
DISTRICT SOUTH WEST, KAPASHERA, DELHI
Jagdish Kaur & Ors ...................................... Appellant

Vs
Gaon Sabha Kapashera ...................................... Respondent

JUDGEMENT

This shall dispose of the appeal dated 04/04/2007 filed by the appellant here in above u/s 185 of the DLR Act, 1954 against the order dated 05/03/2007 of the SDM/RA (Vasant Vihar) in Case No. 77/RA/97 issued under section 86 - A of the DLR Act, 1954. Vide the said order the SDM/RA has passed the ejectment order against the appellant (herein above) from land bearing Khasra No. 1297 Firni (Rasta) (1-4) situated within the revenue estate of village Kapashera. Aggrieved by the said order appellant has preferred an appeal before this court.

Both the parties were heard at length. The case of the appellant is that the suit land Is sandwiched between his other lands and his request for allotment for deficiency during the consolidation of land in the said village was rejected on the grounds of conclusion of the consolidation proceedings in the village. It is contended that there are number of judgements by the Ho. Supreme Court that person cannot be left with the deficient land during the consolidation and his entitlement has to be completed. Also the piece of land is bifurcating his land which is against his advantage. Secondly, this is not phirni is leading to nowhere. Thirdly, the main contention of the appellant is that he is in possession of the said land since 1990 and hence the present proceedings are time barred as the principle of adverse possession is in their favour. The respondent has argued that if the appellant has any grievance with the consolidation proceedings than this Court is not competent to entertain the same and the appellant could have preferred an appeal before the court of the Financial Commissioner. Secondly, sandwiching of the land is no justification for encroaching the Govt. land. Thirdly, since it is a fact that the appellant is encroaching upon the Govt. land therefore in view of the order of the Hon. Supreme Court in case of Jagpal Singh Jagpal Singh & Ors Vs. State of Punjab and Ors the same should be restored to the Gaon Sabha.


After hearing both the parties and perusing the material on record it is observed that as far as the contention of the appellant regarding the grievances arising out of the Consolidation is concerned the same are beyond the purview of this court. Regarding the bifurcation of the land of the appellant due to the suit land is no justification to encroach upon the Govt. land and hence same does not hold any ground. The main observation in the present matter is that the appellant hereinabove has been encroaching upon the suit land which is a Govt. land since long time. The only plea taken by the appellant is that he is in the adverse possession on suit land which is a Govt land for long time. Therefore, it is argued that the proceedings u/s 86A of DLR Act, 1954 is barred by limitation. 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 of the basis of inaction within limitation is irrational , illogical and whollv 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 true 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. "

In view of the above, I am of the considered opinion that the appeal of the appellant herein above lacks merit. Further 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 he retrieved and restored to the Gram Sabha.


Lastly, the present case is a perfect illustration of abuse of law and illegal encroachment. as the petitioner has continued to illegally occupy precious and invaluable Govt. land by adopting 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 he awarded. Hence this order:

ORDER


In view of the observations made in the judgement, the appeal dated 04/04/2007 filed by the appellant here in above u/s 185 of the DLR Act, 1954 against the order dated 05/03/2007 of the SDM/RA (Vasant Vihar) in Case No. 77/RA/97 issued under section 86A of the DLR Act, 1954 is hereby dismissed. The SDM/RA, Kapashera and BDO, South West to take further necessary action in time bound manner for taking possession of the suit land within 15 days.

Further, this illegal encroachment for a long period, and the dilatory tactics to further prolong it, deserves to be 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 the appellant hereinabove to be recovered as arrears of land revenue.


Given under my hand and seal of this court on this 05th day of November 2012.


Vikas Anand, IAS
Dy. Commissioner & Collector


Copy to:
1. SDM, Kapashera
2. BDO, South West
3. Both the parties





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