Juglal And Ors. vs Dy. Commissioner And Ors.
2003 Latest Caselaw 815 Del

JUDGMENT

Vikramajit Sen, J.

1.The genesis of this dispute is to be found in the Report of the Halqua Patwari dated 9.7.1998 in which it has been stated that on the demarcation of Khasra No.503/2, which is Gaon Sabha land, unauthorised construction carried out by the Petitioner, namely, Shri Juglal was noticed. The Report also mentions that the Patwari had been informed that this construction was 25-30 years old. On the basis of this Report proceedings under Section 86-A for the ejectment of the Petitioner appear to have been initiated. In the course of these proceedings, by his Order dated 31.3.2001, the Revenue Assistant (Vasant Vihar Sub-Division), New Delhi-110 037 ordered the ejectment of the Petitioner from Khasra No.503/2 (1-10), Village Rajokri, New Delhi with immediate effect.

2. It appears that no evidence was recorded. Yet, in the view of the Revenue Assistant, the illegal encroachments/houses were on Khasra No.509/2. It also transpires that some proceedings had been taken against the father of the Petitioner in respect of Khasra No.509/2 which were dismissed in default.

3. The Petitioner had assailed the Order dated 15th October, 2001, of the Revenue Assistant before the District Collector (South West, Kapashera, New Delhi) rejecting the Appeal, wherein it has, inter alia, been observed that ''it is the responsibility of the appellant to prove that possession is an old one and more than three years old.'' The Appellate Authority had also returned the finding that the Petitioner had not succeeded in proving that his possession was open and hostile to the title of the Gaon Sabha and, therefore, that it could not be treated as adverse possession. In respect of electricity and water bills etc., the finding was that they could have pertained to Khasra No.509/2 and that the Petitioner had failed to conclusively prove that the construction was 25-30 years old. Mr. Andley had also sought to contend that the Petitioners are deliberately misleading the Court into believing that the old construction exists on Khasra No.503/2 whereas it may be located on Khasra No.509/2. What cannot be ignored is that there is not even an iota of evidence in this regard. The onus probandi at least initially rested on the Prosecutor/Revenue Assistant.

4. Section 84 to 86-A of The Delhi Land Reforms Act, 1954 are relevant and read thus:

''84. Ejectment of persons occupying land without title.--[1] A person taking or retaining possession of land otherwise than in accordance with the provisions of the law for the time being in force, and--

(a) where the land forms part of the holding of a Bhumidhar or Asami without the consent of such Bhumidhar or Asami, or

(b) where the land does not form part of the holding of a Bhumidhar or Asami without the consent of the Gaon Sabha, shall be liable to ejectment on the suit of the Bhumidhar, Asami or Gaon Sabha, as the case may be and shall also be liable to pay damages

(2) Where any person against whom a decree for ejectment from any land has been executed in pursuance of a suit under sub-section (1) re-enters or attempts to re-enter upon such land otherwise than under authority of law, he shall be presumed to have don so with intent to intimidate or annoy the person in possession o the Gaon Sabha as the case may be, within the meaning of section 441 of the Indian Penal Code (45 of 1860).

85. Failure to file suit under section 84 or to execute decree obtained there under.-- If a suit is not brought under [sub-section (1) of section 84] or a decree obtained in any such suit is not executed within the period of limitation provided for the filing of the suit or the execution of the decree, the person taking or retaining possession shall--

(i) where the land forms part of the holding of a Bhumidhar, become a Bhumidhar thereof;

(ii) where the land forms part of the holding of an Asami on behalf of the Gaon Sabha, become an Asami thereof;

(iii) in any case to which the provisions of clause (b) of [sub-section (1) of section 84] apply, become a Bhumidhar or Asami as if he had been admitted to the possession of the land by the Gaon Sabha:

[Provided that if in the revenue records of the fasli year ending on the 30th June, 1954, the land referred to in clause (iii) was not included in the holding of the person taking or retaining possession or his predecessor-in-interest, then, notwithstanding the expiry of the aforesaid period of limitation for such suit or decree, the suit may be filed or the decree obtained in such suit may be executed within a period of three years from the date of passing of the Delhi Land Reforms (Amendment) Act, 1965.

Provided further that the benefit of the extension of the period of limitation under the preceding proviso shall not be availed of in any case where a person who has become a Bhumidhar in respect of any land under clause (iii) has transferred such land to another person for valuable consideration before 10th May, 1965.]

86. Ejectment of Bhumidhar to whom section 85 applies.-- (1) Any person, who becomes a Bhumidhar under the provisions of clause (i) of section 85, may notwithstanding anything hereinafter contained, be ejected from the land at the instance of the Gaon Sabha within such period as may be prescribed.

(2) Where a Bhumidhar has been ejected, his rights in the holding shall be extinguished and the land shall become vacant land.

86A. Ejectment by Revenue Assistant of persons occupying land without title.-- Notwithstanding anything contained in sections 84, 85 and 86, the Revenue Assistant also may, on receiving information or on his own motion, eject any person who is liable to be eject from any land on a suit of the Gaon Sabha under any of those sections, after following such procedure as may be prescribed.]

5.Section 84 envisages the ejectment of a person taking or retaining possession of land illegally, without the consent of the Gaon Sabha and makes him additionally liable for the payment of damages. Section 85 thereafter states that where requisite action is not taken by the Gaon Sabha [as in the present case], the effect would be that the encroacher would become a Bhumidhar. The Schedule to The Delhi Land Reforms Act prescribes that the suit for ejectment of a person occupying land without title, and for damages, must be filed within three years from the year next following the date of unauthorised or illegal occupation. As I see it, the question of adverse possession plays no part in such situations; and the general rule has been reversed by the scheme of the statute. The unauthorised occupant or trespasser has, by Section 84, to be ejected from the premises by positive action taken by the person concerned, in this case, the Gaon Sabha. Mr. Andlay, learned counsel for the Respondent, states that it was for this reason that the Revenue Assistant had, by invoking powers under Section 86-A, assumingly vested in him, commenced ejectment proceedings predicated on the Report of the Halqua Patwari dated 9.7.1998. That Report, however, must either be accepted or rejected in its entirety. The only prima facie view that can be drawn and extracted there from is that in the opinion of the Halqua Patwari the construction in question was 25-30 years old. If that be the position, since the Schedule also prescribes a limitation period of three years, similar to that of Section 84 and 85, the proceedings initiated by the Revenue Assistant, when they commenced, may have already been barred by limitation. There is a observation in the impugned Order that the question of limitation was not pressed before the Appellate Authority. My attention has, however, been drawn to paragraphs 2 and 3 of the Grounds of Appeal which specifically submits that the complaint was time barred.

6.The difficulty in the present case in sustaining the impugned Order, as I perceive it, is that no evidence appears to have been recorded. This may be a consequence of the erroneous legal assumption that the burden of proof rested on the Petitioner to prove that the property in question was 25-30 years old. Mr. Ramesh Chandra, learned Senior Counsel for the Petitioner, states that no evidence was produced and that there is not even a perfunctory statement to the effect that the property in question for the encroachment was less than three years old. A reading of the Report of the Halqa Patwari as also the subsequent Report of the Patwari does not disclose that the opinion of these officials was that the offending construction was contrary to the in formation given to them. It is this state of affairs which leads to the conclusion that there is a miscarriage of justice. The burden of proof may shift to the Petitioner, but that could have happened only when there is at least a positive albeit a based statement that the illegal construction or the trespass was less than three years old. It is certainly arguable that inasmuch as the statute provides the same period of limitation for action under Section 86A as under the preceding Sections, ananomlous situation has arisen. This is for the reason that one of the conditions envisaged in Section 86A is the failure of the Gaon Sabha to take requisite action and that would only occur after the period of three years has elapsed. But even if the most enabling interpretation is to be imparted, there cannot be any possibility of enabling the action taken by the Revenue Assistant after six years of the said events. However, this is not the only source of the powers in jurisdiction of the Revenue Assistant as he can independent of Section 84 and 85 initiate proceedings against unlawful occupation and need not await action by the Gaon Sabha.

7.In these circumstances, the interest of justice would be met by remanding the case back to the Revenue Assistant with a direction that the proceedings be started de novo. Learned counsel for the Petitioner has no objection to the remanding of the case. The Revenue Assistant will issue a fresh notice to the Petitioner.

8. All the three impugned Orders are quashed and the case is remanded back to the Revenue Assistant.