Appeal
NNo. 03!07
Kaptan
Singh v/s Gaon Sal-ha Palain
IN
THE COURT OF DY. COMMISSIONER & COLLECTOR
DISTRICT
SOUTH WEST, KAPASHERA, DELHI
Kaptan
Singh... Appellant
Vs.
Gaon
Sabha Palam... Respondent
JUDGEMENT
This
shall dispose of the appeal dated 03.01.2007 filed by the appellant
here in above u/s 185 of the DLR Act, 1954 against the order dated
23.12.2006 of the SDM/RA (Delhi Cantt.) in Case No. 1699/89 issued
under section 86-A of the DLR Act, 1954. Vide the said order the
SDM/RA has ejected the Appellant from the suit land bearing Khasra
No. 71/123/1 (1-18) situated within the revenue estate of village
Palam. Aggrieved by the said order the appellant has preferred an
appeal before this court.
The
appellant who has filed the appeal against the impugned order dated
23.12.2006, on 03.01.2007 has filed an application on 18.12.2012
seeking withdrawal of the appeal stating that the appellant does not
want to continue with the appeal in view of the judgement dated
22.02.2012 in Civil Suit No. 74/2007 filed by him pertaining to the
suit land. Counsel for the Gram Sabha has strongly opposed
the application and prayed for dismissal of the said application.
From
perusal of the photocopy of the order placed on record, it is evident
that appellant filed the
present appeal challenging the order of the SDM dated
23.12.2006 by preferring an appeal on 03.01.2007 and was all along
pursuing the said appeal before this Court and have mischievously,
fraudulently sought withdrawal by filing the present application.
Perusal of the photocopy of the judgement dated 22.02.2012 in Civil
Suit No. 74/2007 shows that the appellant instituted the Civil Suit
No. 74/07 on 22.03.2007 after filing and pursuing constantly and
vigorously the present appeal. As the said order nowhere mentions
about
filing and pendency of the present appeal by the appellant u/s 185 of
the DLR Act, 1954 which the appellant has filed on 03.01.2007
challenging the order of the Ld. SDM dated 23.12.2006; it is obvious
and evident that appellant concealed the material fact of filing and
pursuing the appeal before this court.
Further
from the array of parties, it is evident that appellant has made
Union of India and SDM/Revenue Assistant as parties/respondents. The
appellant has concealed the material fact with regard to filing of
the present appeal challenging the order of the SDM/RA and was also
pursuing vigorously present appeal u/s 185 of the DLR Act and have
placed the photocopy of order dated 22.02.2012 of the Civil Court on
18.12.2012 alleging that Civil Court has declared the order dated
23.12.2006 as illegal and unlawful and prayed for withdrawal of the
present appeal.
Fraudulent
conduct of the appellant is writ large on the face of it. One who
comes to the Court must come with clean hands. Appellant herein has
not only concealed filing and pursuing of the present appeal before
this court but all along the trial continued with the present appeal
by concealing filing of the civil suit No. 74/07 by arraying
different parties before the Civil Court and at the same time
continuing with the present appeal u/s 185 of the DLR Act.
A
fraud is an act of deliberate deception with the design of securing
something by taking unfair advantage of another. It is a deception in
order to gain by another's loss & it is a cheating intended to
get an advantage which in the present case has been practiced by the
appellant after filing the present appeal u/s 185 of the DLR Act.
1954. During the entire proceedings, appellant did not disclose or
averred about filing of civil suit No. 74/07 for declaration.
Obviously, under the law, appellant cannot pursue & challenge the
impugned order before the civil court after filing the present appeal
on 03.01.2007.
The
Hon'ble Supreme Court in the case of S.P. Chengalvaraya Naidu Versus
Jagannath 1994
AIR
853 and 1994 SCC (1), the ratio decendi of which applies to the
present case, has clearly held that a person whose case is based on
falsehood has no right to pursue the remedy by concealing the
material facts. Such a person can be summarily thrown out at any
stage of the litigation. It is evident that the appellant herein who
has filed the present appeal never disclosed about filing of the
civil suit No. 74/07 against the order dated 23.12.2006 before the
Civil Court and even after the judgement dated 22.02.2012 only moved
an application for withdrawal of the appeal on the ground that civil
court has declared the impugned order dated 23.12.2006 as illegal and
unlawful. After filing and pursuing the present appeal on 03.01.2007;
appellant is estopped from approaching any other court/authorities
while pursuing the present appeal and therefore, conduct. action of
the appellant are fraudulent in my considered opinion. Therefore,
application of the appellant filed on 18.12.2012 seeking permission
to withdraw the appeal is dismissed with cost of Rs. 1,00.000/-.
Having
dismissed the said application, now I propose to dispose of the said
appeal filed by the appellant on merits. Appellant in his appeal has
alleged that the suit land is ancestral property in possession of
ancestors of appellant and despite enactment of DLR Act.. 1954.
appellant were not dispossessed and the proceedings initiated on
report of Halqua Patwari is incorrect, against the records and barred
by time even if land has been declared having vested in Gram Sabha.
He has further alleged that there is no evidence on record to show
that land belongs to Gram Sabha or at any stage vested in Gram Sabha.
There is no material on the record to rebut the right, title of the
appellant and yet without any reasoning and record, SDM has passed
the impugned order in a mechanical manner and so the findings are
perverse.
I
have heard the Ld. Counsels for appellant and respondent and have
carefully gone through the impugned order dated 23.12.2006. The
appellant in the present appeal has not averred or whispered with
regard to initiation of proceedings u/s 86A of DLR Act on the report
of Halqua Patwari dated 22.09.1989. These proceedings as recorded
were subsequently dropped earlier by the SDM vide his order dated
15.01.2000 and subsequently on the appeal of Gram Sabha, Palam were
remanded by the then Collector
(SW)
to the SDM to decide the case in accordance with law.
Then
Ld. Collector considered the plea of both the parties and ordered
that the suit land is recorded in the name of the Gram Sabha and
section 86-A was held applicable to the suit land. Therefore,
proceedings were re-initiated on the order of remand by the Collector
dated 20.11.2000. There is no averment on the part of the appellant
that the order of remand and vesting of suit land in the Gram Sabha
u/s 86-A and its applicability was challenged by the appellant before
the Financial Commissioner.
Accordingly
on initiation of the proceedings, opportunities were given so both
the parties i.e. Gram Sabha & Shri Bhim Singh (deceased i.e.
respondent) who asserted only on his physical possession by
submitting copy of Khatauni Paimaish for the year. 1953-54. The Gram
Sabha has forcefully rebutted the right, title or interest of the
appellant in the land and contended about his unlawful possession. He
further stressed that report of Halqua Patwari is correct which
asserts the title of land in name of Gram Sabha, Palam as per revenue
record. Further, the report of the Halqua Patwari dated 22.09.1989
and 21.01.1994, copies of Khasra Girdawari for the years 1988-1989,
1994-95, and 1986-87 dated 19.10.1989, 26.12.2000 and 03.01.2001
respectively, copy of Khatoni for the year 2002-03 dated 13.07.2005,
and the latest report of Halqua Patwari dated 20.12.2006 reiterates
the title of the land in favour of Gram Sabha, Palam at Khasra No.
71/23 /1(1-18).
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 23/12/2006 and there is no doubt that the respondents therein
were encroaching upon the Govt land. Further, the Hon. Supreme Court
in case of Jagpal Singh & Ors Vs. State of Punjab and
Ors in Civil Appeal No. 1132/2011 and SLP(c) No. 3109/2011 has
taken a serious view of such encroachments and directed the
authorities 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. The plea of the appellant
that proceedings are barred by time is also devoid of any merit.
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. Further, as detailed above, application of the
appellant filed on 18.12.2012 seeking permission to withdraw the
appeal is dismissed with cost of Rs. 1,00,000/-. Cost to be recovered
as arrears of land revenue.
Given
under my hand and seal of this court on this 14th day of
January, 2013.
Vikas
Anand, IAS
Dy.
Commissioner & Collector
Copy
to:
- SDM, Dwarka
- BDO, South West
- Both the parties
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