Thursday, April 18, 2013

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


Appeal No. 30;12
Tara Chand v/s Union of India & Ors
IN THE COURT OF DY. COMMISSIONER & COLLECTOR

DISTRICT SOUTH WEST, KAPASHERA, NEW DELHI
Tara Chand .... Appellant

Vs.

Union of India & Others .... Respondent

JUDGEMENT

This shall dispose of the appeal dated 24/12/2010 filed by the appellant hereinabove u/s 185 of the DLR Act, 1954 against the order dated 11/06/1997 of the SDM/RA (Vasant Vihar) in Case No. SDM/VV/97/1056 issued under section 86A of the DLR Act, 1954. Vide the said order the SDM/RA has ejected the appellant from the suit land bearing Khasra Nos. 2052, 2053, 2054, 2055, 2056, 1856 and 1859 situated within the revenue estate of Village Rajokari, Delhi aggregating to 18 bighas 15 biswas approx. Aggrieved by the said order the appellant has preferred an appeal before this Court. The appeal is accompanied by the application u/s 5 of the Limitation Act.

The appellant was heard at length. After hearing the appellant hereinabove and perusing the material on record it is observed that there are two issues to be determined in the present appeal. First is on the condonation of delay and other is on the maintainability of the appeal. Regarding the condonation of delay the core issue to be determined is whether the applicant 's delay in filing the present appeal can be condoned in light of Section 5 of the Limitation Act. Section 5 is an exception to Section 3 and is an enabling provision. It applies on applications and appeals and not to suit and execution applications. Section 5 gives double discretion to the Court i.e. the Court first has to see if there was sufficient cause proved by the applicant and then, if sufficient cause is proved, also the position of the opposite party is to be seen and then , the Court has to balance the interests of the two parties. Though this Court cannot be hyper-technical and has to be liberal in its approach, yet it shall also be vigilant that the party has not deliberately delayed to buy more time . The Court cannot be so liberal as to the substantive essence of the Limitation Act itself is jettisoned.

In this regard the Hon'ble Supreme Court, in Lanka Venkateshwarlu vs. State of Andhra Pradesh (2011), while dismissing the appeal, has held that the discretion u/s 5 of the Limitation Act is not unlimited and there is no unbridled discretionary power. It has to be exercised within reasonable bounds in a systematic manner bound by reason. Whims & fancies, predictions and prejudices cannot and should not form the basis of exercising discretionary power.

In the present case, applicant's behaviour smacks of malafide and complete lack of good faith. By preferring a writ petition to the Hon'ble High Court without exhausting the available remedy of appeal to the present Court as explicitly given under the Delhi Land Reforms Act, 1954 shows the deliberate act of delaying to buy more time. There is absolutely no sufficient cause shown by the applicant for the aforesaid. Accordingly, the application for condonation of delay under section 5 of the Limitation Act is dismissed.

Further, regarding the maintainability of the appeal this Court also finds no infirmity in the order of the SDM/RA dated 17.06.1997 whereby the appellant has been ejected under section 86A of the Delhi Land Reforms Act, 1954. The Supreme Court in case titled Hemaji Waghaji Jat vs. Bhikhabhai Khengarbhai Harijan & Others 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 trite owner and a windfall for a dishonest person who had illegally taken possession of the property of the trite 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. We fail to comprehend why the law should place premium on dishonesty by legitimizing possession of a rank trespasser and compelling the owner to lose its possession only because of his`. inaction in taking back the possession within limitation. "

Lastly, such situations have been foreseen by 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 and thereby it was directed 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. Hence the order:

ORDER

In view of the aforesaid observations, the appeal dated 24/12/2010 filed by the appellant hereinabove u/s 185 of the DLR Act, 1954 against the order dated 11/06/1997 of the SDM/RA (Vasant Vihar) in Case No. SDM/VV/97/1056 issued under section 86A of the DLR Act, 1954 is hereby dismissed as non-maintainable both on grounds of limitation as well as merits and accordingly. the SDM/RA (Vasant Vihar) and BDO (South West) are directed to take further necessary action in time bound manner.

Given under my hand and seal of this court on this 25th day of October, 2012.

Vikas Anand, IAS
Dy. Commissioner & Collector

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

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