Appeal
No. 162 /06:
Shiksha Bharti Educational Socicty
v/s
GS Palam
Appeal
No. 33/07 :
Ramesh
Kurnari v/s GS Palam
IN
THE COURT OF DY. COMMISSIONER & COLLECTOR
DISTRICT
SOUTH WEST, KAPASHERA, DELHI
Appeal
No. 162/06
Shiksha
Bharti Educational Society &
Ors ........................................... Appellants
Vs.
Gaon
Sabha Palam
. .............................................
. Respondent
Appeal
No.
33/07
Ramesh
Kumari .......................................... Appellant
VS.
Gaon Sabha Palam
......................................... Respondent
JUDGEMENT
This
shall dispose of the appeals dated 26/12/2006 and 19/02/2007 filed by
the appellants herein above
u/s 185 of the DLR Act, 1954 against the common order dated
08/11/2006 of the SDM/RA (Najafgarh) in Case No. 283/2000 &
101/2003 issued u/s 85 & 86-A of the DLR Act, 1954. Vide the said
order the SDM/RA has dismissed the application u/s 85 of the DLR Act,
1954 and passed the ejectment order u/s 86A of the DLR Act, 1954
against the appellant (herein above) in respect of suit land bearing
Kh. No.28/3/2min(0-5), 28/4/2min(0-7), 5/2min(0-3-04), 6/lmin(0-19),
7/2(0-16) and 126(1-11) situated in village Palam. Aggrieved by the
said order appellant has preferred an appeal before this court.
The
parties were heard at length. After hearing the appellant and
perusing the material on record it is
seen that the appellant herein above is claiming to have encroached
upon the suit land which is a Govt. land since long time. It is the
case of the appellant that it is in possession of the suit land since
1980 and hence he has acquired the Bhumidari Rights through adverse
possession as the proceedings are barred by limitation. However, the
Revenue Assistant has failed to appreciate this fact of possession of
more than three years and only held that the appellant herein is
encroaching upon the precious Govt land and thus dismissed the
application under section 85 of the DLR Act, 1954 and also ordered
for ejectment u/s 86A.
The
case of the respondent is that the suit land is Gaon Sabha land and
the appellant is encroaching upon
the same and the proceedings under section 86A of the DLR Act, 1954
are within time and there is nothing on record to show any possession
prior to three years from the date of initiation of proceedings.
After
hearing the parties and perusing the material
on record I
am of the considered opinion that there
is nothing on record which shows any infirmity in the order of the
trial Court. 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. 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 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 trite 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.
"
Besides
this, 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. In view of the above, I am of the
considered opinion that the appeal of the appellant herein above lacks
merit.
It
need not be emphasized here that the appellant has continued to
illegally occupy precious and invaluable Govt. land and has adopted
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 be awarded.
Hence the order:
ORDER
In
view of the observations made in the judgement, the appeals dated
26/12/2006 and 19/2/2007 filed by the appellants hereinabove u/s 185
of the DLR Act, 1954 against the common order dated 08/11/2006 of the
SDM/RA (Najafgarh) in Case No. 283/2000 & 101/2003 issued under
section 85 & 86A of the DLR Act, 1954 is hereby dismissed. The
SDM/RA, Najafgarh and BDO, South West to take further necessary
action in time bound manner for taking possession of the suit land
within one month.
Further,
this illegal encroachment for a long period and the dilatory tactics
to further prolong it deserves to be heavily 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 Smt. Ramesh Kumari the appellant
hereinabove to be recovered as arrears of land revenue.
Given
under my hand and seal of this court on this 31st
day of October 2012.
Vikas
Anand, IAS
Dy.
Commissioner
&
Collector
Copy
to :
1.
SDM, Najafgarh
2.
BDO, South West
3.
Both the parties
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