Delhi High Court
Mahender vs Govt. Of Nct Of Delhi And Ors on 28 February, 2020
$~J-
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 04.12.2019
Judgment Pronounced on: 28.02.2020
+ W.P.(C) 10731/2015
MAHENDER ..... Petitioner
Through Ms.Nidhi Jain and Ms.Sarita Rout,
Advocates
versus
GOVT OF NCT OF DELHI & ORS ..... Respondents
Through Mr.Gautam Narayan, ASC for GNCTD
with Ms. Shivani Vij, Advocate.
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J.
1. This writ petition is filed by the petitioner seeking to challenge the
order dated 12.10.2015 passed by the Deputy Commissioner and order dated
25.6.2014 passed by the SDM/Revenue Assistant thereby allowing the
proceedings initiated against the petitioner under Section 86A of the Delhi
Land Reforms Act, 1954 (hereinafter referred to as DLR Act) and directing
dispossession of the petitioner from the said land situated at village Jhuljhuli,
New Delhi.
2. I may note that this Court has already dealt with a connected writ
petition being Mahender v. Govt. of NCT of Delhi and Ors., WP(C)
12371/2019 pronounced on 31.01.2020. The facts of the present case are
virtually identical as that of WP(C)12371/2019. The same facts are relevant
here and are repeated herein below from the Judgment dated 31.1.2020:-
"2. The facts show a long history of events commencing from
1984. The petitioner states that he was allotted land being 38/4, 4
bighas, 16 biswas in Gaon Jhuljhulli by the Gaon Sabha of the
said village. It is pleaded that under the 20-point programme of
the Central Government, the village Panchayats prepared lists of
villagers, who fulfilled the criteria. Vide Resolution dated
12.07.1984 held under the Chairmanship of the Deputy Director
Panchayat, the enlisted villagers were allotted one acre land each.
It is pleaded that the petitioner thereafter became Assami of the
respondents. The allotments are also said to have been approved
by Resolutions dated 12.09.1984 and 27.09.1984 of the Gaon
Sabha. Possession of the land was handed over vide Resolution
dated 30.10.1984. It is pleaded that the petitioner has been in
possession of the said land and continues to cultivate the same till
date. The land was banjar and the petitioner made the land
cultivable by hard work, day and night. Thereafter, the petitioner
applied to the revenue authorities for recording possession and
cultivation in the revenue records in favour of the petitioner
relying upon Section 74 (4) of the Delhi Land Reforms Act,
1954. It is stated that the Patwari carried out an inspection of the
land on 08.03.1991 and confirmed the possession of the
petitioner; however, the possession of the petitioner was not
recorded in the khasra girdawari.
3. Aggrieved by the above act of the respondents, the
petitioner along with 25 similarly placed villagers filed a writ
petition before this court being W.P. (C) No.245/1992. This
court appointed a Local Commissioner to inspect the land. The
Local Commissioner confirmed the possession of the petitioner
and that the same was being used for agricultural purposes.
4. The respondents had filed a counter-affidavit in the said
writ petition (W.P. (C) 245/1992). In the said counter-affidavit,
the respondents took the plea that the Director Panchayat at no
point of time gave his sanction as required under Rule 178 of the
Delhi Panchayat Raj Rules, 1959 (hereinafter referred to as the
1959 Rules). Hence, the possession of the petitioner was illegal.
The writ petition was disposed of on 14.08.2001 and this court
directed the respondents to record the possession of the person
who is cultivating the fields at the spot in accordance with the
provisions of the Act and the rules framed there under.
5. It is the grievance of the petitioner that as steps were not
taken to comply with the said order dated 14.08.2001, a contempt
petition was filed. On 05.12.2002, in the said petition, the court
recorded the statement of the respondents that the revenue
authorities shall take action to record the possession of the
petitioner in the revenue records in accordance with the said
judgment. It is pleaded that instead of complying with the said
order dated 14.08.2001, the Halka Patwari gave a report for
initiation of eviction proceedings under Section 86A of the DLR
Act against the petitioner. The respondents also filed an
affidavit in the contempt petition that necessary action for
recording of unauthorized possession of the petitioner and others
have taken place by filing Form P-5A by the Halka Patwari. It is
also stated that action under Section 86A of the DLR Act has also
been initiated. The contempt petition was disposed of on
25.03.2003.
6. The grievance of the petitioner is that the respondents
under the direction of the Deputy Commissioner struck off the
name of the petitioner from the revenue record without granting
an opportunity of being heard. Further, it was claimed that the
petitioner had been in possession of the said land since five years
as Assami and had also reclaimed the land. Hence the petitioner
was entitled to be admitted as bhumidar under Section 74(4) of
the DLR Act. It is also pleaded that the proceeding initiated by
the respondents under Section 86A of the DLR Act are barred by
time and hence, are not maintainable. The petitioner also
initiated proceedings under Section 74(4) of the DLR Act.
7. The petitioner filed another writ petition being W.P. (C)
No.6978/2009 before this Court. While disposing of the said writ
petition, a direction was passed vide order dated 01.12.2010 that
the revenue court before whom proceedings are pending under
Section 74 (4) and Section 86A of the DLR Act should dispose of
the said proceedings within nine months. It was further directed
that both the proceedings were to be taken up simultaneously.
8. Pursuant to the above directions, on 25.06.2014, the SDM
dismissed the application of the petitioner under Section 74 (4) of
the DLR Act. An ejectment order was passed against the
petitioner and 25 others under Section 86A of the DLR Act.
9. Against the aforesaid order dated 25.06.2014, the
petitioner filed an appeal under Section 187 of the DLR Act
before the Deputy Commissioner. Similar appeals were also
filed by the other aggrieved villagers. As no interim orders were
passed, it is stated that the Tehsildar malafidely sought to
handover the possession of the land to the BDO on 12.11.2014.
It is claimed that the report of the Tehsildar is false as possession
of the said land is still with the petitioner and the crops are
standing on the said land.
10. Pursuant to another writ petition filed by the petitioner in
this court being W.P. (C) No.8347/2014 and directions issued
thereof, the Deputy Commissioner disposed of the appeals filed
by the petitioner and 25 other villagers by a common order dated
12.10.2015. By the said order, the Deputy Commissioner upheld
the order passed by the SDM and dismissed the claims of the
petitioner under Section 74 (4) of the DLR Act for bhumidhari
rights and allowed ejectment of the petitioner under Section 86A
of the DLR Act.
11. Against above order under Section 86A of the Act, as no
further appeals lie in the proceedings under the DLR Act, the
petitioner filed a writ petition being W.P. (C) No.10594/2011
(i.e. the present writ petition) along with 25 other villagers.
Regarding dismissal of proceedings under Section 74 (4) of the
DLR Act, the petitioner filed a second appeal before the
Financial Commissioner. The Financial Commissioner dismissed
the appeal of the petitioner on 04.10.2019 i.e. the impugned
order. (in that writ petition)"
3. As is apparent from the above, the present writ petition pertains to the
impugned order dated 12.10.2015 passed by the Deputy Commissioner
whereby the Deputy Commissioner has dismissed the appeal of the petitioner
and upheld the eviction of the petitioner from the land in question allotted
under Section 86A of the Delhi Land Reforms Act, 1954. I may note that
order dated 12.1.0.2015 deals with two separate proceedings- namely an order
passed against the petitioner dismissing the proceedings initiated by the
petitioner under Section 74(4) of the DLR Act and the order passed against
the petitioner under Section 86A of the Act ordering eviction of the petitioner.
The order dated 12.10.2015 was challenged to the extent that it dealt the
proceedings initiated by the petitioner under Section 74(4) of the DLR Act
and has already been dealt with by the Financial Commissioner vide order
dated 4.10.2019. The same was also dealt with by this Court in
WP(C)12371/2019 in the order dated 31.1.2020. Both the proceedings i.e. the
appeal and the writ petition filed by the petitioner have been dismissed. This
petition deals with part of the impugned order which was passed under
Section 86 A of the DLR Act initiated by the Gaon Sabha Jhuljhuli.
4. I have heard learned counsel for the parties.
5. Learned counsel appearing for the petitioner Ms.Nidhi Jain, Advocate
has urged as follows:
(i) It is urged that the petitioner was put in possession of the allotted land
on 30.10.1984. The eviction proceedings have been initiated by the
respondent in 2002/January 2003. It is urged that this is much beyond the
limitation period prescribed in Schedule 1 to the DLR Act for initiating
proceedings under Section 86A of the said Act. The period of limitation was
one year and has expired long back. Hence the proceedings were barred by
limitation.
(ii). It is further averred that the respondent admit that the petitioners are
alleged to be in illegal occupation of the land since 1984. Therefore, the
respondent had knowledge of the alleged illegal occupation. Further, the
petitioner has taken various steps including approaching the respondents in
1989 to be declared as Bhumidars. At all the stages, the respondents failed to
initiate appropriate proceedings.
(iii). Reliance is also placed on the report of Local Commissioner dated
26.2.1992 who was appointed by this Court. It, as stated, that the report has
confirmed that the petitioners are in possession of the suit land and crop is
standing on the land.
(iv). It is further averred that the petitioners have been in possession of the
land for 35 years. The respondent did a hogwash exercise and prepared a
bogus report claiming that they have taken over possession in November
2011. It is pleaded that the petitioner remains in possession of the land.
6. Mr.Gautam Narayan, Advocate learned counsel appearing for the
respondents reiterates as follows:
(i) The possession of the land has already been obtained on 12.11.2014
and has been handed over to the BDO(SW). The petition is hence
infructuous.
(ii) It is also pleaded that the petitioner had filed a writ petition seeking
declaration of Bumidari rights. This court was on 26.2.1992 pleased to pass
an order protecting the possession of the petitioners. The writ petition was
disposed of on 14.8.2001. Hence the possession of the petitioner was
protected from 26.2.1992 till 14.8.2001 by an interim order passed by this
Court. The proceedings under Section 86A of DLR Act were commenced on
30.12.2002, and hence, are not barred by limitation.
(iii) It is further pleaded that the petitioners were in illegal occupation of
Gaon Sabha land and proceeding for eviction had been rightly initiated.
Reference is made to the judgment of the Supreme Court in the case of
„Jagpal Singh & Ors vs. State of Punjab & Ors.‟ (2011)11 SCC 396 where
the Supreme Court issued specific directions to the State Governments to
devise schemes for eviction of illegal and unauthorised occupants from Gaon
Sabha or Gram Panchayat land. It is pleaded that the respondent has acted in
terms of the said directions.
7. I may, first, look at the impugned order dated 12.10.2015 to the extent it
deals with the Appeal filed by the petitioner with regard to proceedings under
Section 86A of the DLR Act. The Deputy Commissioner in the impugned
order notes that the land has been wrongly allotted to persons who already are
in possession of substantial holdings. It is stated that these allotments are in
violation of law and null and void in the absence of the approval of the
competent authority. It also pleaded that there is no valid or legal allotment in
favour of the petitioner. It is also pleaded that the period of limitation will not
apply to a case of encroachment on Gaon Sabha land by a rank trespasser.
Hence, the learned Deputy Commissioner concludes that the claim of the
petitioners of the proceedings under Section 86 A being barred by time is
incorrect as the petitioner has been found to be in illegal possession of the
Gaon Sabha land. The status of the petitioner is that of an encroacher and
hence the ejection order passed for such land was held to be valid.
8. Section 86A of the DLR Act reads as follows:
"86A. Ejectment by Revenue Assistant of persons occupying
land without title. - Notwithstanding anything contained in section
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."
9. Limitation period is provided by Schedule I read with Section 185. The
limitation for proceedings under Section 86A are given in Schedule I which
reads as follows:
SCHEDULE 1
(Section 185)
Sl.No. Section Description Period of Time from Proper Court of Court of
of the of suit Limitation which period Court original 1st Appeal 2nd
Act application beings fees jurisdiction Appeal
and other
proceedings
1. 2. 3. 4. 5. 6. 7. 8. 9.
20A. 86A Proceedings Same as that Same as that Nil. Revenue Deputy ..]
for ejectment provided for provided for a Assistant. Commissioner.
of persons a suit under suit under 84,
occupying section 84, 85 or 86, as the
land without 85 or 86, as case may be.
title. the case may
be.
10. Perusal of the above provision show that proceedings under Section
86A for ejectment of persons occupying land without title, limitation period is
provided which is the same as provided under Section 84, 85 and 86 of the
Act. Limitation period for Section 84, 85 and 86 are stated as follows:
SCHEDULE 1
(Section 185)
Sl.No. Section Description Period of Time from Proper Court of Court of
of the of suit Limitation which period Court original 1st Appeal 2nd
Act application beings fees jurisdiction Appeal
and other
proceedings
1. 2. 3. 4. 5. 6. 7. 8. 9.
19 84 Suit for
ejectment of a
person
occupying
land without
title and
damages.
(i) by Three years. From the date -do- -do- -do- ..
Bhumidhar of issue of the
declared prescribed
under Chapter declaration
III of the Act form to the
or by an tenure-holder
Asami falling or the sub-
under section tenure-holder
6 of the Act concerned.
where such
unlawful
occupant was
in possession
of the land
before the
issue of the
prescribed
declaration
form;
-do-. From the date -do- -do- -do- ...
(ii) by a Gaon of constitution
Sabha where of Gaon
the unlawful Panchayat
under section
occupant was
in possession
of the land
before the
constitution of
Gaon
Panchayat.
.]
(iii) By a
Bhumidhar, Three years. From the 1st of As in Revenue Deputy
Asami or July following the Assistant. Commissioner.
Gaon Sabha the date of Court
in any other occupation. Fees
case. Act,
1870.
19A. 85 Suit for -do-. From the date -do- -do- -do- ..]
ejectment of a of passing of
person the Delhi Land
referred to in Reforms
the first (Amendment)
proviso. Act, 1965.
20. 86 Suit for One year. From the date -do- -do- -do- ..
ejectment of a of acquiring
Bhumidhar to Bhumidhari
whom clause rights
(i) of section
85 applies.
20A. 86A Proceedings Same as that Same as that Nil. Revenue Deputy ..]
for ejectment provided for provided for a Assistant. Commissioner.
of persons a suit under suit under 84,
occupying section 84, 85 or 86, as the
land without 85 or 86, as case may be.
title. the case may
be.
11. Hence, limitation period is either three years or one year as the facts
may warrant w.e.f. the day as stated in column No.5. Proceedings initiated
under Section 86A would hence be subject to stated limitation period.
12. The impugned order passed by the learned Deputy Commissioner to the
extent that it completely ignores the said provisions of law regarding
limitation period prescribed suffers from manifest error. The impugned order
merely states that the petitioners are in illegal occupation and no period of
limitation would apply for such illegal encroachment. It fails to give any
reasons for such a conclusion. The finding in the impugned order to the
extent is clearly erroneous and is liable to be set aside.
13. I may also note that it is settled position of law that the issue of
limitation is a mixed question of fact and law. In this context, reference may
be had to the judgment of Supreme Court in the case of Ramesh B. Desai &
Ors. v. Bipin Vadilal Mehta & Ors., (2006) 5 SCC 638, where the court held
as follows:
"19. A plea of limitation cannot be decided as an abstract
principle of law divorced from facts as in every case the starting
point of limitation has to be ascertained which is entirely a
question of fact. A plea of limitation is a mixed question of law
and fact. The question whether the words "barred by law"
occurring in Order 7 Rule 11(d) CPC would also include the
ground that it is barred by law of limitation has been recently
considered by a two-Judge Bench of this Court to which one of
us was a member (Ashok Bhan, J.) in Balasaria Construction
(P) Ltd. v. Hanuman Seva Trust [(2006) 5 SCC 658] it was
held: (SCC p. 661, para 8)
"8. After hearing counsel for the parties, going through the
plaint, application under Order 7 Rule 11(d) CPC and the
judgments of the trial court and the High Court, we are of
the opinion that the present suit could not be dismissed as
barred by limitation without proper pleadings, framing of an
issue of limitation and taking of evidence. Question of
limitation is a mixed question of law and fact. Ex facie in
the present case on the reading of the plaint it cannot be held
that the suit is barred by time."
This principle would be equally applicable to a company
petition. Therefore, unless it becomes apparent from the reading
of the company petition that the same is barred by limitation the
petition cannot be rejected under Order 7 Rule 11(d) CPC."
14. Clearly, in view of the above stated position the concerned
functionaries should have gone into the facts to determine as to whether the
proceedings under section 86A of the DLR Act were within the period of
limitation. The fact that there are disputed questions of fact is obvious. The
petitioners claim the alleged illegal occupation of the properties since 1984.
The respondents claim that they have already taken over the possession of the
property in 2014 rendering the proceeding under Section 86A of the DLR Act
as redundant. They also state that there were interim orders passed by the
Court for substantial period and hence the proceedings initiated by Gaon
Sabha are within the limitation period. It would be for the learned
SDM/Revenue Assistant to go into all these aspects and pass appropriate
orders as per law.
15. I also refer a judgment of a Co-ordinate Bench of this court in the case
of Jugal & Ors. v. Dy. Commissioner & Ors.‟ (2003) 106 DLT 288. In that
case the Co-ordinate Bench was dealing with proceedings under section 86A
initiated for ejectment wherein it was claimed that the construction in question
was 25-30 years old. The Co-ordinate Bench held as follows:
"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 or
the encroachment was less than three years old. A reading of the
Report of the Halqu 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 information
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 bald 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, an anomalous 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."
16. It is clear from the aforesaid judgment that the source of powers of the
Revenue Assistant also exists independent of sections 84 and 85 to initiate
proceedings against unlawful occupation. It would also have to be determined
by the SDM/Revenue Assistant as to whether the petitioner according to the
respondent are rank trespassers can only be evicted through proceedings under
the Delhi Land Reforms Act or can be evicted otherwise.
17. I accordingly set aside the order of the Deputy Commissioner dated
12.10.2015 and of the SDM/Revenue Assistant dated 25.06.2014 to the extent
that it has dealt with the proceedings initiated against the respondents under
Section 86A of the DLR Act. Rest of the said order of the Deputy
Commissioner has already been confirmed by the order of the Financial
Commissioner and then by this Court in the judgment dated 31.1.2020.
18. The proceedings of the respondents under section 86A of the DLR Act
are remanded back for afresh consideration by the SDM/Revenue Assistant as
per law. Parties will appear before the SDM on 16.03.2020. The SDM is
requested to expeditiously dispose of the matter within one year from the date
of the receipt of this order.
19. The petition stands disposed of.
JAYANT NATH, J.
FEBRUARY 28, 2020/raj/v
