Thursday, February 28, 2013

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


Appeal No. 15306
Nathu Singh & Ors. v/s Gaon Sabha Kharkhari Nahar

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

Nathu Singh & Ors...Appellants
Vs.
Gaon Sabha Kharkhari Nahar...Respondent

JUDGEMENT

This shall dispose of the appeal dated 18/12/2006 filed by the appellants hereinabove u/s 185 of the DLR Act, 1954 against the order dated 15/11/2006 of the SDM/RA (Najafgarh) in Case No. 342/85 & 343/85 issued under section 85 & 86-A of the DLR Act, 1954. Vide the said order the SDM/RA has dismissed the suit of the appellants (herein above) in respect of suit land bearing Kh. No. 20/25 (2-08), 23/4/2/I (1-4), 23/7/2 (4-9) & 23/14/2 (4-2) total 12 Bighas 3 biswas situated in the Revenue estate of village Kharkhari Nahar and ejected them from the suit land. Aggrieved by the said order appellant has preferred an appeal before this court.

After hearing the appellant and perusing the material on record it is seen that the appellant hercinabove 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 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. Further, 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 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 it 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 sea! 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 dishonesty by legitimizing possession of a rank trespasser and compelling the owner to loose its pusstion 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 here inabove flacks 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 be retrieved and restored to the Gram Sabha. Hence the order:

ORDER

In view of the observations made in the judgement, the appeal dated 18/12/2006 filed by the appellants hereinabove u/s 185 of the DLR Act, 1954 against the order dated 15/11/2006 of the SDM/RA (Najafgarh) in Case No. 342/85 & 343/ 85 issued under section 85 & 86-A of the DLR Act, 1954 is hereby dismissed. The SDM/RA, Najafgarh and BDO, South West to take further necessary action in time bound planner for taking possession of the suit land.

Given under my hand and seal of this court on this 10 th 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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