Thursday, March 7, 2013

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


Appeal NNo. 03!07
Kaptan Singh v/s Gaon Sal-ha Palain

IN THE COURT OF DY. COMMISSIONER & COLLECTOR
DISTRICT SOUTH WEST, KAPASHERA, DELHI
Kaptan Singh... Appellant
Vs.
Gaon Sabha Palam... Respondent

JUDGEMENT

This shall dispose of the appeal dated 03.01.2007 filed by the appellant here in above u/s 185 of the DLR Act, 1954 against the order dated 23.12.2006 of the SDM/RA (Delhi Cantt.) in Case No. 1699/89 issued under section 86-A of the DLR Act, 1954. Vide the said order the SDM/RA has ejected the Appellant from the suit land bearing Khasra No. 71/123/1 (1-18) situated within the revenue estate of village Palam. Aggrieved by the said order the appellant has preferred an appeal before this court.

The appellant who has filed the appeal against the impugned order dated 23.12.2006, on 03.01.2007 has filed an application on 18.12.2012 seeking withdrawal of the appeal stating that the appellant does not want to continue with the appeal in view of the judgement dated 22.02.2012 in Civil Suit No. 74/2007 filed by him pertaining to the suit land. Counsel for the Gram Sabha has strongly opposed the application and prayed for dismissal of the said application.

From perusal of the photocopy of the order placed on record, it is evident that appellant filed the present appeal challenging the order of the SDM dated 23.12.2006 by preferring an appeal on 03.01.2007 and was all along pursuing the said appeal before this Court and have mischievously, fraudulently sought withdrawal by filing the present application. Perusal of the photocopy of the judgement dated 22.02.2012 in Civil Suit No. 74/2007 shows that the appellant instituted the Civil Suit No. 74/07 on 22.03.2007 after filing and pursuing constantly and vigorously the present appeal. As the said order nowhere mentions
about filing and pendency of the present appeal by the appellant u/s 185 of the DLR Act, 1954 which the appellant has filed on 03.01.2007 challenging the order of the Ld. SDM dated 23.12.2006; it is obvious and evident that appellant concealed the material fact of filing and pursuing the appeal before this court.

Further from the array of parties, it is evident that appellant has made Union of India and SDM/Revenue Assistant as parties/respondents. The appellant has concealed the material fact with regard to filing of the present appeal challenging the order of the SDM/RA and was also pursuing vigorously present appeal u/s 185 of the DLR Act and have placed the photocopy of order dated 22.02.2012 of the Civil Court on 18.12.2012 alleging that Civil Court has declared the order dated 23.12.2006 as illegal and unlawful and prayed for withdrawal of the present appeal.

Fraudulent conduct of the appellant is writ large on the face of it. One who comes to the Court must come with clean hands. Appellant herein has not only concealed filing and pursuing of the present appeal before this court but all along the trial continued with the present appeal by concealing filing of the civil suit No. 74/07 by arraying different parties before the Civil Court and at the same time continuing with the present appeal u/s 185 of the DLR Act.

A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss & it is a cheating intended to get an advantage which in the present case has been practiced by the appellant after filing the present appeal u/s 185 of the DLR Act. 1954. During the entire proceedings, appellant did not disclose or averred about filing of civil suit No. 74/07 for declaration. Obviously, under the law, appellant cannot pursue & challenge the impugned order before the civil court after filing the present appeal on 03.01.2007.

The Hon'ble Supreme Court in the case of S.P. Chengalvaraya Naidu Versus Jagannath 1994
AIR 853 and 1994 SCC (1), the ratio decendi of which applies to the present case, has clearly held that a person whose case is based on falsehood has no right to pursue the remedy by concealing the material facts. Such a person can be summarily thrown out at any stage of the litigation. It is evident that the appellant herein who has filed the present appeal never disclosed about filing of the civil suit No. 74/07 against the order dated 23.12.2006 before the Civil Court and even after the judgement dated 22.02.2012 only moved an application for withdrawal of the appeal on the ground that civil court has declared the impugned order dated 23.12.2006 as illegal and unlawful. After filing and pursuing the present appeal on 03.01.2007; appellant is estopped from approaching any other court/authorities while pursuing the present appeal and therefore, conduct. action of the appellant are fraudulent in my considered opinion. Therefore, application of the appellant filed on 18.12.2012 seeking permission to withdraw the appeal is dismissed with cost of Rs. 1,00.000/-.

Having dismissed the said application, now I propose to dispose of the said appeal filed by the appellant on merits. Appellant in his appeal has alleged that the suit land is ancestral property in possession of ancestors of appellant and despite enactment of DLR Act.. 1954. appellant were not dispossessed and the proceedings initiated on report of Halqua Patwari is incorrect, against the records and barred by time even if land has been declared having vested in Gram Sabha. He has further alleged that there is no evidence on record to show that land belongs to Gram Sabha or at any stage vested in Gram Sabha. There is no material on the record to rebut the right, title of the appellant and yet without any reasoning and record, SDM has passed the impugned order in a mechanical manner and so the findings are perverse.

I have heard the Ld. Counsels for appellant and respondent and have carefully gone through the impugned order dated 23.12.2006. The appellant in the present appeal has not averred or whispered with regard to initiation of proceedings u/s 86A of DLR Act on the report of Halqua Patwari dated 22.09.1989. These proceedings as recorded were subsequently dropped earlier by the SDM vide his order dated 15.01.2000 and subsequently on the appeal of Gram Sabha, Palam were remanded by the then Collector
(SW) to the SDM to decide the case in accordance with law.

Then Ld. Collector considered the plea of both the parties and ordered that the suit land is recorded in the name of the Gram Sabha and section 86-A was held applicable to the suit land. Therefore, proceedings were re-initiated on the order of remand by the Collector dated 20.11.2000. There is no averment on the part of the appellant that the order of remand and vesting of suit land in the Gram Sabha u/s 86-A and its applicability was challenged by the appellant before the Financial Commissioner.

Accordingly on initiation of the proceedings, opportunities were given so both the parties i.e. Gram Sabha & Shri Bhim Singh (deceased i.e. respondent) who asserted only on his physical possession by submitting copy of Khatauni Paimaish for the year. 1953-54. The Gram Sabha has forcefully rebutted the right, title or interest of the appellant in the land and contended about his unlawful possession. He further stressed that report of Halqua Patwari is correct which asserts the title of land in name of Gram Sabha, Palam as per revenue record. Further, the report of the Halqua Patwari dated 22.09.1989 and 21.01.1994, copies of Khasra Girdawari for the years 1988-1989, 1994-95, and 1986-87 dated 19.10.1989, 26.12.2000 and 03.01.2001 respectively, copy of Khatoni for the year 2002-03 dated 13.07.2005, and the latest report of Halqua Patwari dated 20.12.2006 reiterates the title of the land in favour of Gram Sabha, Palam at Khasra No. 71/23 /1(1-18).

After hearing the parties and perusing the material on record I am of the considered opinion that there is no infirmity in the impugned order dated 23/12/2006 and there is no doubt that the respondents therein were encroaching upon the Govt land. Further, the Hon. Supreme Court in case of Jagpal Singh & Ors Vs. State of Punjab and Ors in Civil Appeal No. 1132/2011 and SLP(c) No. 3109/2011 has taken a serious view of such encroachments and directed the authorities 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. The plea of the appellant that proceedings are barred by time is also devoid of any merit. Hence the order:

ORDER

In view of the observations made in the judgement I am of the opinion that the appeal of the appellant hereinabove is devoid any merit. Accordingly the same is dismissed and the occupants stand ejected u/s 86A of the Delhi Land Reforms Act, 1954. The BDO is hereby directed to take necessary action and evict the illegal occupants within 2 weeks. Further, as detailed above, application of the appellant filed on 18.12.2012 seeking permission to withdraw the appeal is dismissed with cost of Rs. 1,00,000/-. Cost to be recovered as arrears of land revenue.

Given under my hand and seal of this court on this 14th day of January, 2013.
Vikas Anand, IAS
Dy. Commissioner & Collector
Copy to:
  1. SDM, Dwarka
  2. BDO, South West
  3. Both the parties



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