Samarth Shiksha Samiti vs Govt Of Nct Of Delhi & Ors
2014 Latest Caselaw 3652 Del

           *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of decision: 12th August, 2014.

+ LPA No.297/2014 & CMs No.6427/2014 (delay in filing) and
6429/2014 (delay in refiling)

SAMARTH SHIKSHA SAMITI                               ..... Appellant
                Through:             Mr. Shambhu Nath Singh, Advocate.
                                  Versus

GOVT OF NCT OF DELHI & ORS                  ..... Respondents
                 Through: Mr. Vikas Garg, Adv for R-1 to 3.
                          Ms. Zubeda Begum, Standing
                          Counsel for GNCT Delhi for R-4/Gao
                          Sabha.
                          Mr. Yogesh Saini for Mr. V.K.
                          Tandon, for R-5/DOE.

CORAM :-
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J.

1. This intra court appeal impugns the order dated 2nd September, 2013

of the learned Single Judge of this Court of dismissal of WP(C) 5497/2013

preferred by the appellant. The appeal is accompanied with an application

for condonation of delay of 159 days delay in filing and of 8 days delay in

refiling thereof.

2. Notice only of the application for condonation of delay was issued.

We have heard the counsels, besides on the aspect of delay, on merits also.

3. The appellant claims to have in or about the year 1986 occupied

Shamlat Deh land in village Dindarpur, Najafgarh, New Delhi and to have

established a school thereon which was accorded recognition in the

academic year 1992-93. The appellant further claims to have subsequently

upgraded the said school to the secondary level and to have been imparting

education to about 3506 students therein. In or about the year 2004,

proceedings for ejectment of the appellant from the said land, claiming the

appellant to be in unauthorized occupation thereof were initiated before the

Revenue Court and an eviction order dated 1 st November, 2004 was passed

against the appellant. The appellant preferred first statutory appeal and

then the statutory revision thereagainst but both of which did not meet with

any success. Though the appellant filed WP(C) 8848/2011 also before this

Court impugning the said order of its ejectment but the same was

withdrawn.

4. The appellant thereafter made a representation to the respondent that

since it was from the said land providing public services for the common

people and that since its activities on the said land were in consonance with

the purpose for which Shamlat Deh land is to be used, the said land should

be regularised in favour of the appellant. The basis of the said

representation was the judgment of the Supreme Court in Jagpal Singh Vs.

State of Punjab 2011 (11) SCC 396 where the Supreme Court, though

holding that the Shamlat Deh lands in villages, though through local laws

vested in the Gram Sabha, are to be used for the common benefit and good

of the villagers and cannot be allowed to be encroached upon and issuing

direction for eviction of unauthorized occupants therefrom clarifying that

long duration of illegal occupation or huge expenditure incurred in making

construction thereon must not be treated as a justification for regularising

the illegal possession, observed that regularisation should only be permitted

in exceptional cases where lease has been granted under some schemes for

benefit of landless labourers or members of Scheduled Castes / Scheduled

Tribes or where there is already a school, dispensary or other public utility

on the said land. The appellant contends that since the school being run by

it on the land was for the benefit of the village, the land should be

regularised in its favour.

5. However on 31st March, 2012 the school of the appellant on the said

land was sealed. The appellant filed another writ petition being WP(C)

2828/2012 during the pendency whereof the respondent, on 26th June, 2012,

in pursuance of the ejectment order, removed the appellant from the

possession of the land and took over possession thereof. WP(C)

No.2828/2012 was disposed of vide order dated 6 th July, 2012 by directing

the respondent to consider the representation made by the appellant.

6. The Deputy Commissioner and District Magistrate, District South-

West, Kapashera, New Delhi vide order dated 4th June, 2013 disposed of the

representation aforesaid of the appellant observing :

a. that the subject land was recorded in the revenue record as Shamlat

Deh land, which is a public utility land intended for the common

benefit of the villagers;

b. the ownership of the land is vested in the Gaon Sabha of village

Dindarpur, Najafgarh, New Delhi and its title could not be

transferred to any individual or institution;

c. that the title claimed by the appellant to the said land had not been

believed in the ejectment proceedings against the appellant and the

order of ejectment wherein had attained finality;

d. that the appellant was thus an encroacher and a trespasser on

Shamlat Deh land;

e. that the appellant in the ejectment had attempted to gain legitimacy

or ownership rights through devious machination of adverse

possession and owing whereto the claim of the appellant for

regularizing the possession of the land in its favour warrants a more

critical and stringent appraisal;

f. that the Supreme Court in Jagpal Singh (supra) had rather forcefully

and stridently cracked the whip on all illegal encroachment and

unauthorized occupation of such common lands / public utility lands

and directed regularisation only in exceptional cases where lease had

been granted under some Government notification to landless

labourers or members of Scheduled Castes/Scheduled Tribes or

where there is already a school, dispensary or any other public utility

on the land;

g. that the appellant however had never been granted any lease of the

land but was an encroacher thereon;

h. that the appellant had applied for regularization only after it was

unsuccessful in establishing the title set up by it over the said land.

i. that the appellant had already been evicted from the land and it

would be unreasonable and irrational to legitimise the unauthorized

and illegal possession by the appellant of the land;

j. that it was open to the appellant to run its school from any legally

acquired premises and the appellant could not be permitted to run

and operate a school from the land over which it had no right;

k. that the appellant had not established that the operations of the said

school were on a no profit no loss basis;

l. that after the ejectment of the appellant, the school under the aegis of

the Directorate of Education was being run on the said land

providing education at negligible cost, besides mid day meal, health

check up; free books and stationery were also being provided in the

said school;

m. that the argument of the appellant for regularisation of the land in its

favour on grounds of serving public purpose, essentially lacks

weight, credence and legal justification.

7. The appellant filed the writ petition from which this appeal arises

impugning the aforesaid order of rejection of its representation.

8. The learned Single Judge dismissed the said writ petition, referring in

extenso to the order of the District Magistrate and Deputy Commissioner

rejecting the representation of the appellant and observing that the appellant

was never endowed with any right in the land in question and was in illegal

possession thereof and the judgment in Jagpal Singh (supra) cannot be read

to mean that possession of every encroacher running a dispensary or a

school has to be regularised. It only gives an option to the State to

regularise possession if it so thinks in the facts and circumstances of the

case. It was also observed that since the Government is already running a

school on 'no profit and no loss basis', there was no need for putting the

appellant back into the possession of the land.

9. The reason given in the application for condonation of long delay of

159 days in filing the appeal is that since the matter is very complex,

therefore the consideration to take the decision to file the appeal also took

up a long time.

10. The counsel for the appellant in this regard draws support from S.

Ganesharaju Vs. Narasamma 2012(4) SCALE 152 which, save for laying

down that rules of limitation are not meant to destroy or foreclose the right

of the parties, otherwise has no relation to the reason given for delay.

11. To say the least, the reason given for condonation of delay is false.

The appellant has pegged this appeal only on the judgment of the Supreme

Court in Jagpal Singh (supra). A perusal of the order dated 6th July, 2012

of disposal of WP(C) No.2828/2012 earlier preferred by the appellant as

well as of the representation preferred by the appellant and the order dated

4th June, 2013 (supra) of rejection as well as the writ petition shows that the

appellant in the appeal has not stated anything new / more than what has

been the stand of the appellant at least since more than one year prior to the

institution of this appeal. The averment that the matter is complex and

required long deliberation, is even otherwise fake and has no merit.

12. However even on merits we do not find the appellant to be having

any case whatsoever. The only purport of the observations in Jagpal Singh

(supra) of permitting regularisation of a school, dispensary or other public

utility on Shamlat Deh land was to prevent disruption of such public utility

services for the benefit of the villagers. However what we find in the

present case is that the school established by the appellant on the subject

land has not been disrupted by the ejectment of the appellant therefrom, but

continues to be run. The only difference is that the appellant has been

excluded from the management thereof. The appellant is pressing for

regularisation, for its own benefits rather than for running any public

service. It is common knowledge that inspite of rules and regulations

prohibiting any profiteering, the managements of such private school benefit

considerably therefrom. Such private motives were not for consideration in

Jagpal Singh (supra) on which this appeal is based. We therefore do not

find any merit in this appeal on merits also and dismiss the same with costs

of Rs.10,000/- payable by the appellant to the respondent.

RAJIV SAHAI ENDLAW, J.

CHIEF JUSTICE AUGUST 12, 2014 M