Dy. Commissioner & Collector, Kapashera, Delhi in Shiksha Bharti Educational Society v.s GS Palam & Ramesh Kurnari v.s GS Palam [31.10.2012]

Appeal No. 162 /06: Shiksha Bharti Educational Socicty v/s GS Palam

Appeal No. 33/07 : Ramesh Kurnari v/s GS Palam

IN THE COURT OF DY. COMMISSIONER & COLLECTOR

DISTRICT SOUTH WEST, KAPASHERA, DELHI

Appeal No. 162/06

Shiksha Bharti Educational Society & Ors ........................................... Appellants

Vs.

Gaon Sabha Palam . ............................................. . Respondent

Appeal No. 33/07

Ramesh Kumari .......................................... Appellant

VS.

Gaon Sabha Palam ......................................... Respondent

JUDGEMENT

This shall dispose of the appeals dated 26/12/2006 and 19/02/2007 filed by the appellants herein above u/s 185 of the DLR Act, 1954 against the common order dated 08/11/2006 of the SDM/RA (Najafgarh) in Case No. 283/2000 & 101/2003 issued u/s 85 & 86-A of the DLR Act, 1954. Vide the said order the SDM/RA has dismissed the application u/s 85 of the DLR Act, 1954 and passed the ejectment order u/s 86A of the DLR Act, 1954 against the appellant (herein above) in respect of suit land bearing Kh. No.28/3/2min(0-5), 28/4/2min(0-7), 5/2min(0-3-04), 6/lmin(0-19), 7/2(0-16) and 126(1-11) situated in village Palam. Aggrieved by the said order appellant has preferred an appeal before this court.

The parties were heard at length. After hearing the appellant and perusing the material on record it is seen that the appellant herein above is claiming to have encroached upon the suit land which is a Govt. land since long time. It is the case of the appellant that it is in possession of the suit land since 1980 and hence he has acquired the Bhumidari Rights through adverse possession as the proceedings are barred by limitation. However, the Revenue Assistant has failed to appreciate this fact of possession of more than three years and only held that the appellant herein is encroaching upon the precious Govt land and thus dismissed the application under section 85 of the DLR Act, 1954 and also ordered for ejectment u/s 86A.

The case of the respondent is that the suit land is Gaon Sabha land and the appellant is encroaching upon the same and the proceedings under section 86A of the DLR Act, 1954 are within time and there is nothing on record to show any possession prior to three years from the date of initiation of proceedings.

After hearing the parties and perusing the material on record I am of the considered opinion that there is nothing on record which shows any infirmity in the order of the trial Court. 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. 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 a 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 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." 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. "

Besides this, 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. In view of the above, I am of the considered opinion that the appeal of the appellant herein above lacks merit.

It need not be emphasized here that the appellant has continued to illegally occupy precious and invaluable Govt. land and has adopted multiple dilatory tactics and frivolous excuses to extend his illegal occupation and encroachment. The Hon'ble Supreme Court has held in Salem Advocate Bar Association, Tamil Nadu vs. Union of India (6 SCC 344:AIR 2005 SC 3353) that costs shall be imposed in a practical and realistic manner. The purpose of costs is not only to indemnify the affected party rather also to create a deterrent effect with respect to frivolous malafide and unnecessary suits or proceedings, The Courts shall refrain from awarding nominal costs, rather real costs and in proper cases even excessive costs shall be awarded. Hence the order:

ORDER

In view of the observations made in the judgement, the appeals dated 26/12/2006 and 19/2/2007 filed by the appellants hereinabove u/s 185 of the DLR Act, 1954 against the common order dated 08/11/2006 of the SDM/RA (Najafgarh) in Case No. 283/2000 & 101/2003 issued under section 85 & 86A of the DLR Act, 1954 is hereby dismissed. The SDM/RA, Najafgarh and BDO, South West to take further necessary action in time bound manner for taking possession of the suit land within one month.

Further, this illegal encroachment for a long period and the dilatory tactics to further prolong it deserves to be heavily penalized and hence, in view of the aforesaid judgement, I deem it fit to impose cost of Rs. 20,00,000/- (Rs. Twenty lakhs) on Smt. Ramesh Kumari the appellant hereinabove to be recovered as arrears of land revenue.

Given under my hand and seal of this court on this 31^st day of October 2012.

Vikas Anand, IAS

Dy. Commissioner & Collector

Copy to :

1. SDM, Najafgarh

2. BDO, South West

3. Both the parties

http://www.delhi.gov.in/wps/wcm/connect/672ae7804d621950883ed9b12c41fedc/162-06dc.PDF?MOD=AJPERES&lmod=-826189577

Dy. Commissioner & Collector, Kapashera, Delhi in Vedpal v.s Gaon Sabha Ghitomi [10.10.2012]

Appeal No. 25/ 07

Vedpal v/s Gaon Sabha Ghitomi

IN THE COURT OF DY. COMMISSIONER & COLLECTOR

DISTRICT SOUTH WEST, KAPASHERA, DELHI

Vedpal ................................................. Appellant

Vs.

Gaon Sabha Ghitorni .................................................. Respondent

JUDGEMENT

This shall dispose of the appeal dated 07/02/2007 filed by the appellant hereinabove u/s 185 of the DLR Act, 1954 against the order dated 12/01/2007 of the SDM/RA (Vasant Vihar) in Case No. 218/RA/1996 issued u/s 85 & 86A 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 Khasra No. 629/2 (5-10) of village Ghitomi and ejected them from the suit land. Aggrieved by the said order appellant has preferred an appeal before this court.

Matter was heard at length and kept for orders on 07.09.2012. 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 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 Hermaji 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 a 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 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 lose 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, the appeal dated 07/02/2007 filed by the appellant hereinabove u/s 185 of the DLR Act, 1954 against the order dated 12/01/2007 of the SDM/RA (Vasant Vihar) in Case No. 218/RA/1996 issued under section 85 & 86A of the DLR Act, 1954 is hereby dismissed. The SDM/RA, Vasant Vihar and BDO, South West to take further necessary action in time bound manner 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, Vasant Vihar
2. BDO. South West
3. Both the parties

http://delhi.gov.in/wps/wcm/connect/f57e57004d4c97f2aa51eeb603f6c761/25-07-DC.PDF?MOD=AJPERES&lmod=-826189577

Dy. Commissioner & Collector, Kapashera, Delhi in Angoori Devi vs. Gaon Sabha Daulatpur & Or [30.10.2012]

Appeal No. 102/07

Angoori Devi v/s Gaon Sabha Daulatpur & Ors.

IN THE COURT OF DY. COMMISSIONER & COLLECTOR

DISTRICT SOUTH WEST, KAPASHERA, DELHI

Angoori Devi ............................ Appellant

Vs.

Gaon Sabha Daulatpur & Ors ............................. Respondent

JUDGEMENT

This shall dispose of the appeal dated 06/07/2007 filed by the appellant here in above u/s 65 of the DLR Act, 1954 against the order dated 28/05/2007 of the SDM/RA (Najafgarh) issued under section 86A of the DLR Act, 1954. Vide the said order SDM/RA has ejected the 29 persons from the suit land bearing Khasra Nos. 29//24/1(1-8), 25/1(1-8), 29/12(3-3), 29/6(4-16), 28/10(4-16). 28/8(4-16), 28/3(4-16), 28/12/1(3-12), 19/16(2-17), 29/17(5-10), 30/25/2(1-9), 34/5/1(3-0), 20/17/2 min(2-0), 20/18(4-10), 20/19(4-16), 29/13(3-8), 20//7(2-13), 21//10(4-12), 28//1(4-16), 1//22(4-16). 28/2(4-16), 29/19(4-16), 32//16/2(3-8), 29/21/1(3-3), 28/9(4-16), 29//11/2(3-2), 1/23(4-16), 28/17(1-7), 28/7(2-16), 27/24/2(0-16), 28/4min(2-19), 29/20(3-12), 28/11/1(3-12) and 28/13(4-14), the total land measuring 121-15 situated within the revenue estate of village Daulatpur from whom the appellant had claimed to have taken the possession of the same. Aggrieved by the said order appellant has preferred an appeal before this court.

The parties were heard at length. In the instant matter it is observed that the impugned order is not challenged by any of the parties against whom the impugned order was issued. In fact the present appeal/application is filed by the applicant hereinabove by claiming to have purchased the said land from the alleged allottees mentioned as respondents in the impugned order and taken over the possession. However, the respondent has argued that the said land is a Gaon Sabha land and as such Govt land and vide the impugned order the Revenue Assistant has held the possession of the respondents as illegal and encroachment upon the Govt land and accordingly ejected them u/s 86A.

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 28/05/2007 and there is no doubt that the respondents therein were encroaching upon the Govt land. Thus there was no right to any person to transfer or occupy this Govt land. In this regard it is pertinent to mention that the Hon'ble Supreme Court has held in Jagpal Singh & Ors. Vs. State of Punjab and Ors in Civil Appeal No. 1132/2011 and SLP (c) No. 3109/2011 that "in large parts of the country this common village land has been grabbed by unscrupulous person using muscle power, money power or political clout, and in many States now there is not an inch of such land left for the common use of the people of the village, though it may exist on paper. People with power and pelf operating in villages all over India systematically encroached upon communal lands_and put them to uses totally inconsistent with its original character, for personal aggrandizement at the cost of the village community. This was done with active connivance of the state authorities and local powerful vested interests and goondas.” The Apex Court took an an extremely adverse view of such illegal encroachments and directed the authorities "for eviction of illegal/unauthorized occupants of Gram Sabha/Gram Panchayat/Poramboke/Shamlat land and these must be restored to the Gram Sabha /Gram Panchayat for the common Use of villagers of the village.”

The present case is a perfect illustration of such abuse of law and illegal encroachment. Furthermore, the petitioner has continued to illegally occupy precious and invaluable Govt. land and has adopted multiple dilatory tactics and frivolous excuses to extend his illegal occupation and encroachment. The Hon'ble Supreme Court has held in Salem Advocate Bar Association, Tamil Nadu vs. Union of India (6 SCC 344:AIR 2005 SC 3353) that costs shall be imposed in a practical and realistic manner. The purpose of costs is not only to indemnify the affected party rather also to create a deterrent effect with respect to frivolous, malafide and unnecessary suits or proceedings. The Courts shall refrain from awarding nominal costs, rather real costs and in proper cases even excessive costs shall be awarded. 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 and register FIRs against persons who have the audacity to blatantly flout the law and encroach and also abet the encroachment of valuable Govt land.

Further, this illegal encroachment for a prolonged period and the dilatory tactics to further prolong it deserves to be heavily penalized and hence, in view of the aforesaid judgement, I deem it fit to impose an excessive cost of Rs. 1,00,00,000/- (one crore) on the appellant hereinabove to be recovered as arrears of land revenue.

Given under my hand and seal of this court on this 30th day of October 2012.

Vikas Anand, IAS

Dy. Commissioner & Collector

Copy to:

1. SDM, Kapashera
2. BDO, South West
3. Both the parties

http://www.delhi.gov.in/wps/wcm/connect/dec3b8804d4c9ef4aa82eeb603f6c761/102-07-DC.pdf?MOD=AJPERES&lmod=-826189577

Dy. Commissioner & Collector, Kapashera, Delhi in Jivasharam vs. Gaon Sabha Rajkori & Ors [30.07.2012]

Appeal No. 11/05 & 12/05

Jivasharam v/s Gaon Sabha Rajokri & Ors.

IN THE COURT OF DY. COMMISSIONER & COLLECTOR

DISTRICT SOUTH WEST, KAPASHERA, NEW DELHI

Appeal No. 11/05

Jeevashram .................. Appellant

Vs.

Gaon Sabha Rajokri .................... Respondent

Appeal No. 12/05

Jeevashram .................... Appellant

Vs.

Gaon Sabha Rajokri .................... Respondent

JUDGEMENT

This shall dispose of the appeals dated 21/02/2005 filed by the appellant herein above against the order of ejectment dated 16/02/2005 of the SDM/RA (Vasant Vihar) in case No. 214/RA/96 under section 86-A of the DLR Act, 1954 and in case No. 69A/RA/97 for dismissing the case u/s 85 of the said Act in respect of the suit land which is a part*of Khasra No. 446 (40-18) of village Rajokri. Aggrieved by the said order the appellant has preferred the appeals before this Court.

The case of the appellant is that the appellant is a charitable hospital and a shelter home, which is being run and managed by Poddar Foundation, a registered charitable trust. A notice under Section 86 A was issued by the Ld. SDM/RA vide order dated 04/09/1996 on a report of Patwari dated 06/05/1996. That the appellant filed its objections to the notice under Section 86A of the Act, interalia taking the

following objections:

a) That the appellant has already filed a petition under Section 85 of the Act on 22/08/1997 in respect of the land comprised in Khasra No. 446 (4-0) situated in the revenue estate of village Rajokri, New Delhi and the petition under section 85 was filed prior in time and the petition of the Gaon Sabha under section 86A of the Act is liable to be stayed, till the disposal of the said petition.

b) That the Halqua Patwari has no power under Section 86A of the Act and Rule 170 of the Delhi Land Reforms Act to inform the SDM/RA about the illegal occupation and the show cause notice does not mention about the date of alleged illegal occupation.

c) That the ejectment proceedings are not in accordance with Rule 170 of the Delhi Land Reforms Rules.

d) That the proceedings are hopelessly time barred, as the limitation for initiation of proceedings under Section 86A of the Act as mentioned in Schedule-1 is three year from the date of occupation. In the present case, the limitation expired on 30/06/ 1993 as the appellant is in possession of the land since 15/07/1990

e) That the object of the appellant are general public utility and charitable and are within the meaning of word "charitable purpose” as defined in Section 3 (3) of the Act.

f) That the Respondent is a veterinary hospital and a shelter home for providing shelters to animals and the user is relating to animal husbandry.

That a reply was filed by the Respondent/Gaon Sabha interalia taking an objection that the Respondent is using the land for non agricultural purposes. The appellant filed a rejoinder interalia submitting that the land is being used for agriculture and related purposes under Section 22, 3 (13) and 3(3) of the Act. That the matter was argued sometime in the year 1998 and written arguments were filed by the appellant. That vide the impugned order dated 16/02/2005, the Ld. SDM/RA passed an order of ejectment against the appellant from the land in question and simultaneously dismissed the petition of the appellant under Section 85 of the Act as not maintainable. It is contended that the impugned orders are wholly illegal, unsustainable in law and are liable to be set aside. The Ld. SDM/RA did not appreciate the position of law. The material on record, particularly the revenue documents, was totally brushed aside by the Ld. SDM/RA while passing the impugned orders. The Ld. SDM/RA has not given any reasons in support of his conclusions. The Ld. SDM/RA acted in haste as he wanted to terminate the proceedings.

It is further argued that the Ld. SDM/RA did not appreciate that no proceedings under Section 86 A could be initiated on report of Halqua Patwari who has no power under the Act to inform the SDM/RA about the alleged illegal occupation as it is only the duty of the Pradhan or a Member of Gaon Panchayat to report about the alleged illegal possession. In the instant case, no action has been initiated either by the Gaon Sabha or suo motu by the Ld. SDM/RA.

Further, it is stated that the Ld. SDM/RA erred in totally ignoring the plea that the proceedings under Section 86A are hopelessly time barred as the limitation for initiation of proceedings under Section 86A of the Act as mentioned in Schedule I Column 4 is three years from the date of occupation and the said limitation expired on 30/06/1993. The Ld. SDM/RA did not appreciate that the proceedings under Section 86-A of the Act are barred by limitation and as per law, if no process under Section 84 & 86A have been initiated within the period of limitation, then bhoomidari rights under Section 85 of the Act have to be automatically conferred on a person in possession of the land.

That, Ld. SDM/RA failed to appreciate that the activities of the Appellant are covered within the definition of word "animal husbandry". Because the Ld. SDM/RA totally ignored the plea of the appellant that it is using the land for breeding, rearing and medical care of the animals. The land over which the the Appellant is in possession is still a land within the meaning of Section 3 (13) of the Act, which means land held or occupied for purposes connected with agriculture or horticulture or animal husbandry etc. and includes buildings appurtenant thereto. Section 3 (12) of the Act defines improvements which includes a dwelling house erected on the holding and connected with agriculture , horticulture or animal husbandry etc. and which is a work, which adds materially to the value of the holding and is consistent with the said purposes.

Because the Ld. SDM/RA erred in dismissing the case of the , appellant on maintainability, without permitting the appellant to lead evidence, and without appreciating that the case is pending for the last 8 years. The appellant would have led cogent and convincing evidence and will prove from documents and by leading oral evidence that they are using the subject land for agriculture and related purposes and they are in possession of the land for last more than 15 years, which fulfils the requirements of Section 85 of the Act. The action of the Ld. SDM/RA is violative of principles of natural justice.

The appellant ' s counsel has further contended that the Hon. High Court of Delhi in case of Juglal & Ors (CW No.1150/2000) held that eviction cannot be ordered without allowing the party to lead the evidence . He has also contended that in case of Balbir Singh Vs. ADM & Others the Hon. High Court of Delhi has upheld the claim of certain rights to persons who are in possession of land without rights. Para 32 of the judgement is also quoted . The appellant has also relied upon the Khasra Girdawari from the year 1991 to 1995 which shows entry of hospital. It is further prayed by the appellant that his written arguments and grounds of appeal be treated as arguments & his application under appendix VI, paragraph 28 of Delhi Land reforms Rules be decided.

Case of the respondent is that the appellant is encroaching upon the Govt. land without authority. The claim of the appellant is misplaced and he has encroached upon the said land and even in Khasra Girdawari there is no entry in remarks column which shows that the information in the Khasra Girdawari may not be authentic . It is also argued that the appellant is in illegal non-cultivatory possession of the suit land and the same is being used for hospital purpose which by any stretch of imagination cannot be said to be agriculture or allied activity. Therefore, the petition was dismissed by the Ld. RA and the appeal is also liable to be dismissed.

After perusing the material on record and hearing both the parties it is observed that, firstly, the appellant is in unauthorized non-cultivatory possession of the suit land and claiming that the activity of running the veterinary hospital is covered within the ambit of the Animal Husbandry as defined in the section 3(12) of the Delhi Land Reforms Act, 1954 . However, neither the definitions & meanings contained in written arguments nor the provisions of per section 3(12) of the DLR Act, 1954 covers the hospital under the ambit of the agriculture or connected activity or the improvement thereon. The arguments of the appellant does not hold good in this regard . Secondly, the evidence in the form of the Khasra Girdawari relied upon by the appellant is not having any entry recorded in which casts a doubt on the authenticity of the information thereon. Therefore, the plea of the time barred in respect of both the proceedings under section 85 and 86A of the DLR Act, 1954 ground. Thirdly, the ground of the appellant that he was not given the chance to lead the evidence by the RA/SDM is also lacking any substance because the appellant (respondent therein ) has been duly heard by the Ld. RA before passing of the order and the ground of ejectment in the impugned order is on the point of law. The RA has heard the appellant and also appreciated the arguments produced before him and only after that arrived at the order of ejectment . Thus, I do not-find-any merit in the application under appendix VI, paragraph 28 of Delhi Land Reforms Rules filed by the appellant and the same is dismissed accordingly. Fourthly, regarding the point that the proceedings are not in accordance with the Rule 170 of Land reform Rules because only Gram Sabha or Panchayat can make report about illegal possession also devoid of merits as the Revenue Assistant can initiate the proceedings u/s 86A of the DLR Act upon report of not only Gram Pradhan or member of Panchayat but otherwise also. Fifthly, regarding the issue of charitable purpose, without going into the merits of the claim of charitable activities it is concluded that any charitable activity as defined in the act needs to be in consonance with the other provisions of the Act and if the activity is otherwise violative of the general provisions of the Act then the benefits of the charitable cannot be claimed for the same. Last but not the least, 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. Hence the order:

ORDER

In view of the observations made in the judgement I am of the considered opinion that the appeals dated 21/02/2005 filed by the appellant herein above against the order of ejectment dated 16/02/2005 of the SDM/RA (Vasant Vihar) in case no. 214/RA/96 under section 86-A of the DLR Act, 1954 and in case no. 69A/RA,/97 for dismissing the case u/s 85 of the said Act in respect of the suit land which is part of Khasra No. 446 (40-18) of village Rajokri are devoid of merits. Accordingly, the orders of the SDM/RA are upheld and the appeals are dismissed with the directions to the BDO (South West) to take further necessary action in a time bound manner.

Given under my hand and seal of this court on this 30th day of July, 2012

Vikas, Anand, IAS

Dy. Commissioner & Collector

Copy to:

1. SDM, Najafgarh /Vasant Vihar

2. BDO, South West

3. Both the Parties

http://www.delhi.gov.in/wps/wcm/connect/7bb915004c9b3dad95e79f1dc8ddc224/app-11-05-dc.PDF?MOD=AJPERES&lmod=-826189577

Dy. Commissioner & Collector, South West Delhi in Paras Ram vs. Gaon Sabha Dichaon Kalan [17.07.2012]

Appeal No. 328/97

Paras Ram v/s Gaon Sabha Dichaon Kalan

IN THE COURT OF DY. COMMISSIONER & COLLECTOR

DISTRICT SOUTH WEST, DELHI

Paras Ram ............................................. Appellant

Vs.

Gaon Sabha Dichaon Kalan ........................................... Respondent

JUDGEMENT

This shall dispose of the appeal dated 10/01/1997 filed by the appellant hereinabove against the ejectment order dated 16/07/1992 of the SDM/RA (Punjabi Bagh) u/s 86A of DLR Act, 1954 in Case No.263/90. Vide the said order the SDM/RA has ordered for ejectment of the appellant hereinabove (respondent therein) from the suit land bearing Kh. No. 158/24/1 in revenue estate of village Dichaon Kalan. Aggrieved by the said order the appellant has preferred appeal before this Court.

The case of the appellant is that he is the owner and in possession of a house/baithak within the abadi of the village Dichaon Kalan, Delhi which he has constructed in the year 1950-51, that is prior to the commencement of the Delhi Land Reforms Act, 1954 and has been residing therein with his family since then, without any interference whatsoever from the Respondent and /or from anybody in the village. The appellant has also obtained electricity and water connection in the said house. That prior to the construction of the said house, the appellant had been using the said property in question as Gher/Baithak since the time of his forefathers. But due to the kacha structure, the same was washed away in heavy rains and as such the appellant has constructed the present house on the property, in question. The respondent has no right, title or interest whatsoever in the same.

The above said house of the appellant is surrounded by the residential houses of the other villagers and the school and the Panchayat-ghar of the village. That to the utter surprise of the appellant, the court of Shri H.R.Gaur, the then SDM/RA and the predecessor of the court of Smt. Renu Sharma, served notices u/s 86A of DLR Act, 1954 on the appellant and the other persons of the village, most of them named in Para no. 4 of the present petition. That, on enquiry it was found the said notice(s) were issued to the appellant and others on the basis of some report/complaint made by the Halqua Patwari to the learned court. That the learned court of Shri H.C.Gaur was pleased to agree to call for further detailed report regarding the alleged encroachment on the Gaon Sabha land, that is the village Johar in Khasra No. 158/24/1, but no such report has been filed by the Halqua Patwari in the court till today.

That the appellant was also directed to file his objections/written statement in the matter, but on the request of the learned counsel for the appellant, the learned court of Sh. H.C. Gaur agreed that first the above said detailed report is called for. As such the appellant did not file any objections/written statement in the matter because no report whatsoever was filed by the Halqua Patwari till the decision of the case. That even otherwise the appellant was not in a position to file his objections /written statement in the case because the notice served on the appellant was totally silent about the encroachment made by the appellant, if any, on the land of village Johar that is Khasra No. 158/24/1. In fact the notice itself was illegal, ultra vires and without jurisdiction and the same did not contain the requisite particulars regarding the alleged encroachment, which are required under the law and the rules, framed under the DLR Act, 1954.

That it would be note worthy to mention here that all the notices issued/served on the other villagers except the appellant either have been dropped, or the proceedings based upon the said notice (s) against them have been dropped by the learned court. It is the contention of the appellant that in addition to his submission in appeal, it is to be recorded that if LCR is not available then matter be remanded back for further inquiry since the contention urged in the appeal goes unrebutted.

The case of the respondent is that this is a clear cut case of encroachment whereby vide order dated 16/07/1992 in case no. 263/90 Ld. SDM/RA has ejected the appellant u/s 86 - A. The order is on record in the case, thus the appeal is liable to be dismissed.

After hearing the parties and perusing the material on record it has been observed this is a case where encroachment has been done on the Govt. land which is a Johar (village pond) and the same is admitted by the representative of the appellant hereinabove (respondent in the case before Ld. RA) as evident from the order dated 16/7/1992 of the SDM (Punjabi Bagh) which is on record. Therefore, though the contention of the appellant regarding the non-availability of the LCR is factually correct but it does not undermine the truth that the appellant is in illegal possession of the Govt. land and that too a Johar which is a subject matter of so many PILs before the higher Courts and where no. of directions have been passed by various courts and authorities to retrieve the water bodies. Notwithstanding the above facts 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 has 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.

In view of the above conclusions, the contention of the appellant that the possession over the said land implies his ownership is untenable and he is liable for ejectment which has been duly ordered by the Ld. SDM vide the impugned order. Regarding his contention that all the notices issued/served on the other villagers except the appellant either have been dropped, or the proceedings based upon the said notice (s) against them have been dropped by the learned court may be examined on merits by the Ld. trial court. Hence the order:

ORDER

In view of the observations made in the judgement I am of the opinion that the appeal dated 10/01/1997 of the appellant hereinabove against the ejectment order dated 16/07/1992 of the SDM/RA (Punjabi Bagh) u/s 86A of DLR Act, 1954 in Case No.263/90 in respect of suit land bearing Kh. No.158/24/1 (Village Johar) is devoid of merits. Accordingly the same is dismissed. The SDM/RA and BDO are directed to take further necessary action.

Given under my hand and seal of this court on this 17"' day of July2012.

Vikas Anand, IAS

Dy . Commissioner & Collector

Copy to:

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

http://www.delhi.gov.in/wps/wcm/connect/5cff3e004c9b324595c79f1dc8ddc224/328-dc.PDF?MOD=AJPERES&lmod=-826189577

Dy. Commissioner & Collector, Kapashera, Delhi in Nehru Academy vs. G S Amberhai & Shobha Rani Sharma vs. G S Amberhai [04.07.2012]

IN THE COURT OF Dy. COMMISSIONER & COLLECTOR

DISTRICT SOUTH WEST, KAPASHERA, NEW DELHI

Nehru Academy ................................. Appellant

Vs.

Gaon Sabha Amberhai ................................. Respondent

Shobha Rani Sharma .................................. Appellant

Vs.

Gaon Sabha Amberhai .................................. Respondent

JUDGEMENT

This shall dispose of the two appeals dated 16/04/2003 filed by the appellants herein above against the orders of the SDM/RA (Vasant Vihar) dated 17/03/2003 issued under section 85 of the DLR Act, 1954 in Case No.402/RA/2001 & and order of ejectment u/s 86A in case No. SDM/VV/32/RA/2002/258-260. Vide the said orders the SDM/RA has dismissed the application u/s 85 and ordered for ejectment of the appellant hereinabove (respondent therein) from the Gaon Sabha land bearing Khasra No. 25/16 (4-16) & 25/17 (4-16) of village Amberhai. Aggrieved by the said order the appellants have preferred the appeals before this Court.

The case of the appellant is that the appellant society is a registered society engaged in educational activities running a school at Vashishta Park, Pankha Road, New Delhi and another school at village Amberhai on the said property on Khasra No. 25/16 (4-10) & 25/17 (0-10) under the name and style of Nehru Academy. It is submitted that the said school became operational on the said land in the year 1988-89 and at that time the land under the occupation of the school was purchased from its erstwhile owner/bhoomidhar for consideration but later on it was found that the land was acquired land in respect of which no purchase/sale could have taken place. The management thus felt itself deceived and intimated the authorities for the same and requested them to allot this piece of land itself on payment. That after a long drawn correspondence, the school was allowed to run on the suit land vide letter no. F.33(101)/P/85/N/1969 dated 12/05/1989 issued by Additional District Magistrate cum Director (P), Delhi Administration.

That the appellant also filed a civil writ petition in the Hon'ble High Court of Delhi being the civil writ petition no. 3102/98 for the allotment of the land on regular basis and the said writ petition was also disposed by the Hon'ble High Court of Delhi giving the directions to the respondents that the case for regular allotment be considered. That the Revenue record pertaining to the said land for the year 1990-91, 1991-92, 1992-93 reflects that the school was functioning. That the revenue Deptt. filed a petition under section 85 of DLR Act and proceedings remained pending for quite a long time and no effective proceedings ever took place and suddenly and abruptly vide order dated 17/03/2003 the petition was dismissed by a non speaking order and without considering the material available on the record and without considering the revenue record.

The case of the respondent is that the appellant is admitting the encroachment on Gaon Sabha land since long and if he has been duped by the vendor/erstwhile owner/bhoomidhar, he can proceed against him under relevant criminal proceedings.

After hearing the parties and perusing the material on record it has been observed, that the letter No. F.33(101)/P/85/N/1969 dated 12/05/1989 issued by Additional District Magistrate cum Director (P), Delhi Administration referred to by the appellant in his appeal is regarding temporary permission and does not entitle the appellant for continuous encroachment on the said land on permanent basis. Also the said permission of the ADM is prima facie without any authority from the Govt. and therefore it lacks any legal sanctity. This is evident from the order dated 23/4/2002 of the Hon. High Court in case 3102/98 referred to by the appellant in his appeal whereby the Hon. Court has not said anything about the said letter of the ADM and directed the respondent to take decision on the representation of the appellant. Further, contrary to the assertion of the appellant the said order of the Hon. High Court is nowhere a direction for considering his case for regular allotment. Also the contention of the appellant that he was sold some other land but given possession of the suit land and thus duped by the vendor/erstwhile owner/bhoomidhar entitles him for regular allotment of the suit land is untenable because in such a case he has an option to proceed against him under relevant criminal proceedings. In fact allowing allotments on such grounds will be a dangerous precedent which may start a wrong trend. Lastly, 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. Hence the order

ORDER

In view of the observations made in the judgement the appeal of the appellant hereinabove filed u/s 185 DLR Act, 1954 against the orders of the SDM/RA (Vasant Vihar) dated 17/03/2003 issued u/s 85 of the DLR Act. 1954 in Case No.402/RA/2001 & and order of ejectment u/s 86A in case No. SDM/VV/32/RA/2002/258-260 in respect of the Gaon Sabha land bearing Khasra No. 25/16 (4-16) & 25/17 (4-16) of village Amberhai is devoid of merits. Accordingly, the orders of the SD /RA are upheld and the appeals are dismissed with the directions to the SDM/RA (Vasant Vihar) and BDO (South West) to take further necessary action in a time bound manner.

Given under my hand and seal of this court on this 4th day of July, 2012

Vikas Anand, IAS

Dy. Commissioner & Collector

Copy to:

1. SDM, Najafgarh

2. BDO, South West

3. Both the Parties

http://www.delhi.gov.in/wps/wcm/connect/fb73cd004bebacfba08be2a074822b2a/402-2001_DC.PDF?MOD=AJPERES&lmod=-826189577

Dy. Commissioner & Collector, Kapashera, Delhi in Kanwar Singh vs. Gaon Sabha Samalka [18.06.2012]

Appeal No. 132/2007

Kanwar Singh v/s Gaon Sabha Samalka

IN THE COURT OF DY. COMMISSIONER & COLLECTOR

DISTRICT SOUTH WEST, KAPASHERA, NEW DELHI

Kanwar Singh ..................................... Appellant

Vs.

Gaon Sabha Samalka .................................... Respondent

JUDGEMENT

This shall dispose of the appeal dated 31/08/2007 filed by the appellant herein above against the order of the SDM/RA (Delhi Cantt.) dated 28/08/2007 issued under section 86 - A of the DLR Act. 1954 in Case No. 287/RA/87. Vide the said order the SDM/RA has ordered for ejectment of the respondent from the suit land bearing Khasra No. 15/56/1 (0-8), 15/8/2 (1-11) & 15/13/2 (1-3) in the revenue estate of village Samalka. Aggrieved by the said order the appellant has preferred an appeal before this Court.

The case of the appellant is that a notice dated 23/06/1987 under section 86 (A) of Delhi Land Reforms Act was served on the appellant by the court of Ld. RA in respect of Khasra No. 15/56/1 (0-8), 15/8/2 (1-11) & 15/13/2 (1-3)situated in village Samalka, New Delhi. The appellant filed an application for dropping the proceedings initiated by the respondent under section 86 (A) of Delhi Land Reforms Act, 1954 under section 11 read with section 151 CPC. It is contended that the same matter has already been adjudicated by a competent court having equal jurisdiction. The case adjudicated previously was hopelessly time barred in case no. 20/RA/77 which was instituted by the Gaon Sabha Samalka under section 86(A) of Delhi Land Reforms Act, 1954 against Kanwar Singh and others and was decided on 12/10/1977 by the court of Ms. Lalitha Kumar, SDM/RA, Delhi.

The Revenue Assistant by its order dated 28/08/2007 passed not only an order against the cannon of law rather exceeded his jurisdiction. When the same matter has already been adjudicated by a competent court having equal jurisdiction then the present RA has no jurisdiction to decide the present case as the matter was already decided on the application of Gaon Sabha under section 86 (A) of Delhi Land Reforms Act, 1954. This clearly prove that the present order is not only wrong but has been acted and passed by the Ld. Trial court acting as an appellate court against the order of his predecessor. The Ld. Trial court failed to appreciate and consider the material on record that the appellant was in settled possession of the land in question since 1962 as admitted by, PW1 Sh. Jagdish Sharma, Pradhan Gaon Sabha Samalkha and PW 2 Sh. Hari Chand, Halqua Patwari of village Samalkha which were produced by the Gaon Sabha Samalkha in the proceedings under. Section 86 A of Delhi Land Reforms Act, 1954 in the case No. 20/RA/77. Even after the said order the limitation period ended on 11/10/1980 and no proceedings were started by the Gaon Sabha Samalkha within the period of limitation. Hence no proceedings u/s 86 of Delhi Land Reforms Act, 1954 can be or could be initiated against the present appellant by the Gaon Sabha Samalkha. That in the order dated 28/08/2007 the Ld. Trial court has mentioned that the main contention of the Kanwar Singh the respondent therein was Res judicata under section 11 of CPC. The Ld. Trial court had not gone through the contents of section 11 of Civil Procedure Code, 1908 and ignored the law of the land which shows that the court below had no faith in the proved and embodied law and based order dated 28/08/2007 on the basis of surmises and presumptions and passed the impugned order arbitrarily without application of judicial mind.

The case of respondents is that the contention of the appellant is totally wrong and misplaced and stressed that point of Res Judicata and time barred is not applicable in the instant case because the case no. 20/RA/77 was dismissed in default by the Ld. trial Court. The respondent also contended that the plea of the appellant of the proceedings being barred by time is not substantiated and maintainable. The respondent has strongly denied the contention of possession of the appellant on the suit land and further denied the existence of any evidence in support of the appellant.

After hearing the parties and perusing the material on record it is observed that the case No.20/RA/77 was dismissed in default for non-appearance of the appellant therein (respondent herein). Therefore, the Ld. trial court had been within its jurisdiction to hear the matter and pass the impugned order in case No.287/RAS/87. Further, the claim of the appellant herein that he was in settled possession on the suit land does not hold any ground as far as any documentary evidence is concerned. He has not produced the sufficient proof before the Ld. trial court to establish his settled and undisputed possession. All the other material on the record has also shown that the appellant hereinabove has been encroaching upon the suit land and the claim of respondent for his ejectment is justified. Further, notwithstanding the claims of the appellant, 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 I am of the opinion that the appeal of the appellant hereinabove filed u/s 185 DLR Act, 1954 against the order of the SDM/RA (Delhi Cantt.) dated 28/08/2007 issued under section 86A of the DLR Act, 1954 in Case No. 287/RAS/87 is devoid of merits. Accordingly the same is dismissed and the SDM/RA (Vasant Vihar) and BDO (South West) are directed to take further necessary action in time bound manner.

Order to be communicated to the parties.

Given under my hand and seal of this court on this 18^th day of June, 2012.

Vikas Anand, IAS

Dy. commissioner & Collector

Copy to:

1. SDM, Najafgarh

2. BDO, South West

3. Both the parties

http://www.delhi.gov.in/wps/wcm/connect/eadef4004d621a768847d9b12c41fedc/132-07-dc.pdf?MOD=AJPERES&lmod=-826189577