Monday, March 4, 2013

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


Appeal No. 50/11
Kuldeep Singh v/s Gaon Sabha Chhascla & Ors

IN THE COURT OF DY. COMMISSIONER & COLLECTOR
DISTRICT SOUTH WEST, KAPASHERA, DELHI
Kuldeep Singh ... Appellant
Vs.
Gaon Sabha Chhawla & Ors ... Respondents

JUDGEMENT


This shall dispose of the appeal dated 13/04/2011 filed by the appellant here in above u/ s 185 of the DLR Act, 1954 against the order dated 29/03/2010 of the SDM/RA (Najafgarh) under section 81 of the DLR Act, 1954. Vide the said order the SDM/RA has rejected the execution proceedings u/s 86A on the around of limitation. Aggrieved by the said order appellant has preferred an appeal before this court.

In the present matter the appellant is a villager from Village Chhawala and complainant before the SDM. It is the case of the appellant that the ejectment order was passed by Ld. SDM under Section 86 A of the DLR Act. 1954 on dated 08/01/1996. That the Gaon Sabha. Chhawla filed for execution of the same in Case No. 195/2005. Vide order dated 13/02/2007 the BDO was directed to take over the possession of the land. The report dated 21/04/2007 shows that in view of the existing constructions on the suit land same was sealed. However, the Ld. SDM held that the execution ought to be filed within three years as prescribed under section 185 of DLR Act and hence the execution petition was dismissed on dated 29`x' March. 2010. It is argued that the Ld. SDM has not appreciated the fact that the respondent no. 2 to 5 has encroached on the land of the Gaon Sabha. It is therefore prayed to set aside the impugned order dated 29/03/2010.

The case of the respondent is that the appeal is hopelessly barred by time and the appellant has no locus-standi to file the present appeal. That the respondents and ancestors have been in physical possession of above said suit land prior to the commencement of Delhi Land Reforms Act, 1954 and have constructed the boundary wall of the sarjie in the year 1964-65 and thereafter have constructed their residential house in the year 1975-76. It is submitted that the suit land is the part and parcel of Old Laldora Abadi comprising in Kh. No. 88 and the same is ancestral land of the respondents. That the proceedings under 86-A of the Delhi Land Reforms Act is not maintainable in respect of Old Laldora land. Therefore, it is prayed that the present appeal may be dismissed.

After hearing both the parties and perusing the record it is observed that being the member of the village the appellant automatically becomes the member of the Gaon Sabha as provided under section 151 of the DLR Act, 1954 and as such the present appeal is maintainable as far as question of locus-standi is concerned. Further, it is observed that the contention of the respondent regarding the suit land falling in the Abadi Dell is neither upheld in any of the orders of the lower Court nor it is substantiated through any evidence by the respondent. Also there is no dispute in any of the orders regarding the encroachment on the Gaon Sabha land. Therefore, the contention of abadi deh is misplaced and unacceptable.

Furthermore, during the hearing the counsel of the Gaon Sabha has contended that no limitation period is prescribed in the DLR Act regarding execution of the order issued under section 86A of the said Act. Therefore. the limitation of 12 years as provided under Rule 190 of the CPC shall be applicable. Therefore, the application of execution was not time barred as the RA has wrongly concluded. Further, 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. Therefore, I am of the considered opinion that the issue of limitation is not maintainable in the instant case. Hence the order:

ORDER

In view of the observations made in the judgement the appeal dated 13/U4/201I filed by the appellant here in above u/s 185 of the DLR Act, 1954 against the order dated 29/03/2010 of the SDM/RA (Najafgarh) under section 81 of the DLR Act, 1954 is allowed. The SDM/RA, Najafgarh is directed to carry out fresh execution proceedings in the instant matter. BDO, South West is directed to take necessary action in time bound manner.

Given under my hand and seal of this court on this 5th 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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