Appeal No.
30;12
Tara Chand v/s Union of India & Ors
IN THE
COURT OF DY. COMMISSIONER & COLLECTOR
DISTRICT SOUTH WEST, KAPASHERA, NEW DELHI
Tara
Chand .... Appellant
Vs.
Union of India & Others .... Respondent
JUDGEMENT
This shall dispose of the
appeal dated 24/12/2010 filed by the appellant hereinabove u/s 185 of
the DLR Act, 1954 against the order dated 11/06/1997 of the SDM/RA
(Vasant Vihar) in Case No. SDM/VV/97/1056 issued under section 86A of
the DLR Act, 1954. Vide the said order the SDM/RA has ejected the
appellant from the suit land bearing Khasra Nos. 2052, 2053, 2054,
2055, 2056, 1856 and 1859 situated within the revenue estate of
Village Rajokari, Delhi aggregating to 18 bighas 15 biswas approx.
Aggrieved by the said order the appellant has preferred an appeal
before this Court. The appeal is accompanied by the application u/s
5 of the Limitation Act.
The appellant was heard at
length. After hearing the appellant hereinabove and perusing the
material on record it is observed that there are two issues to be
determined in the present appeal. First is on the condonation of
delay and other is on the maintainability of the appeal. Regarding
the condonation of delay the core issue to be determined is whether
the applicant 's delay in filing the present appeal can be condoned
in light of Section 5 of the Limitation Act. Section 5 is an
exception to Section 3 and is an enabling provision. It applies on
applications and appeals and not to suit and execution applications.
Section 5 gives double discretion to the Court i.e. the Court first
has to see if there was sufficient cause proved by the applicant and
then, if sufficient cause is proved, also the position of the
opposite party is to be seen and then , the Court has to balance the
interests of the two parties. Though this Court cannot be
hyper-technical and has to be liberal in its approach, yet it shall
also be vigilant that the party has not deliberately delayed to buy
more time . The Court cannot be so liberal as to the substantive
essence of the Limitation Act itself is jettisoned.
In
this regard the Hon'ble Supreme Court, in Lanka
Venkateshwarlu vs. State of Andhra
Pradesh
(2011),
while dismissing the appeal, has held that the discretion u/s 5 of
the Limitation Act
is
not unlimited and there is no unbridled discretionary power. It has
to be exercised within reasonable
bounds
in a systematic manner bound by reason. Whims & fancies,
predictions and prejudices cannot
and
should not form the basis of exercising discretionary power.
In the present case,
applicant's behaviour smacks of malafide and complete lack of good
faith. By preferring a writ petition to the Hon'ble High Court
without exhausting the available remedy of appeal to the present
Court as explicitly given under the Delhi Land Reforms Act, 1954
shows the deliberate act of delaying to buy more time. There is
absolutely no sufficient cause shown by the applicant for the
aforesaid. Accordingly, the application for condonation of delay
under section 5 of the Limitation Act is dismissed.
Further,
regarding the maintainability of the appeal this Court also finds no
infirmity in the order of the SDM/RA dated 17.06.1997 whereby the
appellant has been ejected under section 86A of
the
Delhi Land Reforms Act, 1954. The Supreme Court in case titled Hemaji
Waghaji Jat vs.
Bhikhabhai
Khengarbhai Harijan & Others 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 trite owner and a windfall for a dishonest person who had
illegally taken possession of the property of the trite 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. We
fail to comprehend 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. "
Lastly, such situations have
been foreseen by 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 and thereby it was directed 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 aforesaid
observations, the appeal dated 24/12/2010 filed by the appellant
hereinabove u/s 185 of the DLR Act, 1954 against the order dated
11/06/1997 of the SDM/RA (Vasant Vihar) in Case No. SDM/VV/97/1056
issued under section 86A of the DLR Act, 1954 is hereby dismissed as
non-maintainable both on grounds of limitation as well as merits and
accordingly. the SDM/RA (Vasant Vihar) and BDO (South West) are
directed to take further necessary action in time bound manner.
Given
under my hand and seal of this court on this 25th
day of October, 2012.
Vikas Anand, IAS
Dy. Commissioner &
Collector
Copy to:
- SDM, Vasant Vihar
- BDO, South West
- Both the parties
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