Appeal No. 55/07 -
Jagdish Kaur & Ors v/s Gaon Sahha Kapashera
IN
THE COURT OF DY. COMMISSIONER & COLLECTOR
DISTRICT SOUTH
WEST, KAPASHERA, DELHI
Jagdish
Kaur & Ors ...................................... Appellant
Vs
Gaon Sabha
Kapashera ...................................... Respondent
JUDGEMENT
This shall dispose of the appeal dated 04/04/2007 filed by the
appellant here in above u/s 185 of the DLR Act, 1954 against the
order dated 05/03/2007 of the SDM/RA (Vasant Vihar) in Case No.
77/RA/97 issued under section 86 - A of the DLR Act, 1954. Vide the
said order the SDM/RA has passed the ejectment order against the
appellant (herein above) from land bearing Khasra No. 1297 Firni
(Rasta) (1-4) situated within the revenue estate of village
Kapashera. Aggrieved by the said order appellant has preferred an
appeal before this court.
Both
the parties were heard at length. The case of the appellant is that
the suit land Is sandwiched between his other lands and his request
for allotment for deficiency during the consolidation of land in the
said village was rejected on the grounds of conclusion of the
consolidation proceedings in the village. It is contended that there
are number of judgements by the Ho. Supreme Court that person cannot
be left with the deficient land during the consolidation and his
entitlement has to be completed. Also the piece of land is
bifurcating his land which is against his advantage. Secondly, this
is not phirni is leading to nowhere. Thirdly, the main contention of
the appellant is that he is in possession of the said land since 1990
and hence the present proceedings are time barred as the principle of
adverse possession is in their favour. The respondent has argued that
if the appellant has any grievance with the consolidation proceedings
than this Court is not competent to entertain the same and the
appellant could have preferred an appeal before the court of the
Financial Commissioner. Secondly, sandwiching of the land is no
justification for encroaching the Govt. land. Thirdly, since it is a
fact that the appellant is encroaching upon the Govt. land therefore
in view of the order of the Hon. Supreme Court in case of Jagpal
Singh Jagpal Singh & Ors Vs. State of Punjab
and Ors the same should be restored to the Gaon Sabha.
After
hearing both the parties and perusing the material on record it is
observed that as far as the contention of the appellant regarding the
grievances arising out of the Consolidation is concerned the same are
beyond the purview of this court. Regarding the bifurcation of the
land of the appellant due to the suit land is no justification to
encroach upon the Govt. land and hence same does not hold any ground.
The main observation in the present matter is 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 adverse possession on suit land which is a Govt land for
long time. Therefore, 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 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 of the basis of inaction within limitation is
irrational , illogical and whollv 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 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 herein above 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 he
retrieved and restored to the Gram Sabha.
Lastly,
the present case is a perfect illustration of abuse of law and
illegal encroachment. as the petitioner has continued to illegally
occupy precious and invaluable Govt. land by adopting 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 he awarded. Hence this order:
ORDER
In
view of the observations made in the judgement, the appeal dated
04/04/2007 filed by the appellant here in above u/s 185 of the DLR
Act, 1954 against the order dated 05/03/2007 of the SDM/RA (Vasant
Vihar) in Case No. 77/RA/97 issued under section 86A of the DLR Act,
1954 is hereby dismissed. The SDM/RA, Kapashera and BDO, South West
to take further necessary action in time bound manner for taking
possession of the suit land within 15 days.
Further,
this illegal encroachment for a long period, and the dilatory tactics
to further prolong it, deserves to be 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 the appellant hereinabove to be
recovered as arrears of land revenue.
Given
under my hand and seal of this court on this 05th day of
November 2012.
Vikas Anand, IAS
Dy.
Commissioner & Collector
Copy
to:
1.
SDM, Kapashera
2.
BDO, South West
3.
Both the parties
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