Appeal
No. 15306
Nathu
Singh & Ors. v/s Gaon Sabha Kharkhari Nahar
IN
THE COURT OF DY. COMMISSIONER & COLLECTOR
DISTRICT
SOUTH WEST, KAPASHERA, DELHI
Nathu
Singh & Ors...Appellants
Vs.
Gaon
Sabha Kharkhari Nahar...Respondent
JUDGEMENT
This
shall dispose of the appeal dated 18/12/2006 filed by the appellants
hereinabove u/s 185 of the DLR Act, 1954 against the order dated
15/11/2006 of the SDM/RA (Najafgarh) in Case No. 342/85 & 343/85
issued under section 85 & 86-A 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 Kh. No. 20/25 (2-08),
23/4/2/I (1-4), 23/7/2 (4-9) & 23/14/2 (4-2) total 12 Bighas 3
biswas situated in the Revenue estate of village Kharkhari Nahar and
ejected them from the suit land. Aggrieved by the said order
appellant has preferred an appeal before this court.
After
hearing the appellant and perusing the material on record it is seen
that the appellant hercinabove 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 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 it 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 sea! 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 dishonesty by legitimizing possession of a
rank trespasser and compelling the owner to loose its pusstion 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 here inabove flacks 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
18/12/2006 filed by the appellants hereinabove u/s 185 of the DLR
Act, 1954 against the order dated 15/11/2006 of the SDM/RA
(Najafgarh) in Case No. 342/85 & 343/ 85 issued under section 85
& 86-A of the DLR Act, 1954 is hereby dismissed. The SDM/RA,
Najafgarh and BDO, South West to take further necessary action in
time bound planner 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:
- SDM, Najafgarh
- BDO, South West
- Both the parties
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