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
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