Monday, April 22, 2013

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


Appeal No. 91/07
Daryao Singh & Ors. v/s Gaon Sabha Goela Khurd
IN THE COURT OF DY. COMMISSIONER & COLLECTOR
DISTRICT SOUTH WEST, KAPASHERA, DELHI
Daryao Singh & Ors .............................................. Appellants
Vs.
Gaon Sabha Goela Khurd ..................................... Respondent
JUDGEMENT

This shall dispose of the appeal dated 07/06/2007 filed by the appellants herein above u/s 185 of the Delhi Land Revenue Act, 1954 against the order dated 01/06/2007 passed by RA/SDM (Delhi Cantt.) in Case No. 286/NG/RA/2001 u/s 85 of DLR Act, 1954. Vide the impugned order the case of the appellants has been dismissed in respect of land bearing Rect. No. 3 Khasra No.9 (4-16), 12 (4-15) and 13 (4-16) in village Goela Khurd, Najafgarh, New Delhi.

Both the parties were heard at length. The case of the appellant is that he is in adverse cultivatory possession of the suit land since 1969 & enough evidence was produced by the appellant to prove his possession for more than 3 years. Further it is argued that the cultivatory possession of the father/predecessor of the appellants was duly proved before the Ld. RA who was pleased to dismiss the proceedings under section 86 - A vide order dated 30.5.1973 after holding appellant's father to be in continuous physical cultivatory possession of the land which stood proved for a period of more than 6 years. That the Gaon Sabha did not file any appeal against the order dated 30.5.1973. Further, it is stated that neither appellants admitted nor there is anything on record to prove that the suit land is a cremation ground. Respondent has argued that the order of the RA is correct and it is clearly held that the said land is a cremation ground and the appellant has encroached upon the same. Regarding the order dated 30.05.1973 of the RA u/s 86A of the DLR Act. 1954 the same was dismissed in default of appearance of the Gaon Sabha without giving the Gaon Sabha any opportunity and the suit land is a vacant land in continuous possession of the Gaon Sabha. Thus the appeal is liable to be dismissed.

After hearing the appellant and perusing the material on record it is seen 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 possession on Govt. land for long time therefore he should be declared Bhumidar u/s 85 of the DLR Act, 1954 on the basis of adverse possession. The issue is duly considered by the RA and after appreciation of all facts and records has issued a reasoned order on merits.

Notwithstanding the above, it is observed by the Hon'ble Supreme Court in the matter Hemaji Waghaji Jat v/s Bhikhabhai Khengarbhai Harijan & Others (AIR 2009 SC 103) 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 a dishonest person who had illegally taken possession of the property of the true owner. The law ought not to benefit a person who is 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 hereinabove 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 be retrieved and restored to the Gram Sabha. Hence the order:

ORDER
In view of the observations made in the judgement, appeal dated 07/06/2007 filed by the appellants herein above u/s 185 of the Delhi Land Revenue Act, 1954 against the order dated 01 /06/2007 passed by RA/SDM (Delhi Cantt.) in Case No. 286/NG/RA/2001 u/s 85 of DLR Act, 1954 is hereby dismissed. The BDO, South West is hereby directed to take necessary action in time bound manner.

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, Najafgarh
  2. BDO, South West
  3. Both the parties




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