एक बार घोषित क़ब्रिस्तान हमेशा रहता है क़ब्रिस्तान, नहीँ छीन सकती सरकार- एड. असद हयात

एक बार घोषित क़ब्रिस्तान हमेशा रहता है क़ब्रिस्तान, नहीँ छीन सकती सरकार- एड. असद हयात

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दिल्ली: क़ब्रिस्तानों पर सरकारी और गैर सरकारी अवैध कब्जे और कानूनी विवाद

एक बार घोषित क़ब्रिस्तान हमेशा रहता है क़ब्रिस्तान : नहीँ छीन सकती सरकार

हर जगह मज़बूत कानूनी लड़ाई और पैरवी की ज़रूरत

ज़मीन कहती है कि मुझे छू कर चलो

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दोस्तों ,

दिल्ली में कुछ क़ब्रिस्तानों पर सरकारी और गैर सरकारी कब्जों को लेकर विवाद चल रहा है । कमोबेश यह स्थिति पूरे देश में है जहाँ इस तरह के क़ब्ज़े किये गये हैं । वक़्फ़ कानून में जो कानूनी प्रोविज़न किया गया है वह सब अपनी जगह है । सभी दोस्त जो ऐसे मामलों में काम कर रहे हैं और जो फिक्रमंद हैं , उनको सलाम करते हुये कहना चाहता हूं

1. राजनीतिक नेताओं और भू माफियाओं पर भरोसा न करें और ख़ुद रेवेन्यू रिकॉर्ड ( पिछले कम से कम 100 साल) की पड़ताल करें और दस्तावेज़ मुत्तालिक खसरा , खतौनी, खेवट आदि के हासिल करें जिस से क़ब्रिस्तान का असल रकबा कितना था , कि सही तस्दीक हो सके और उसमें कब कब बढ़ोत्तरी हुई भी मालूम हो सके ।

2. वक़्फ़ के सर्वे रिकॉर्ड में कितना रकबा दर्ज हुआ है यानि फार्म 37 में कितना लिखा है और कितना दर्ज होने से रह गया जिस पर मौके पर अभी भी क़ब्रें बनी हों या भूमि हड़पने वालों ने तोड़ दी हों।

3 . याद रखें कि ग्राम सभा की ऊसर, बंज़र और नजूल की ज़मीन पर भी ऐसे क़ब्रिस्तान मौके पर मौजूद हो सकते हैं जिनका रेवेन्यू रिकॉर्ड और वक़्फ़ में इंद्राज न हुआ हो और ऐसे क़ब्रिस्तानों को वक़्फ़ बाई यूजर कहा जायेगा और उनकी कानूनी मान्यता होगी और वो बतौर वक़्फ़ संपत्ति दर्ज कराये जा सकते हैं ।

4. सरकार या कोई भी ये दलील नहीं दे सकता कि उसका 12 साल से ज्यादा की अवधि से कब्ज़ा है और वक़्फ़ बोर्ड या किसी मुस्लिम ने उस का विरोध नहीं किया । इस संबंध में , आप के अध्य्यन और जानकारी के लिये सुप्रीम कोर्ट के दो फैसलों के अंश पार्ट 1 व् 2 में शामिल कर रहा हूँ ।

पार्ट 1 में गुडगाँव के केस का उल्लेख है जिस में SP गुडगाँव ने किसी प्राइवेट आदमी की ज़मीन पर 12 साल से सरकार का कब्ज़ा करा रखा था । सुप्रीम कोर्ट ने कहा कि लोकतंत्र में सरकार ख़ुद नागरिकों के जीवन और संपत्ति की सुरक्षा की ज़िम्मेदार होती है लिहाज़ा वह किसी की संपत्ति पर कब्ज़ा नहीं कर सकती।

5. दोस्तों, याद रहे कि अगर वक़्फ़ बोर्ड के अफसर या दूसरी सरकारी अफसरशाही कोई कार्यवाही नहीं करती है तो कोई भी व्यक्ति वक़्फ़ सम्पति की सुरक्षा के लिये कानूनी कार्यवाही कर सकता है। community का अधिकार समाप्त नहीं हो जाता है । पार्ट 2 में उल्लेखित जसपाल सिंह केस का यही फैसला है।

दोस्तों,

बेहतर होगा कि एक पैनल बना कर दिल्ली की वक़्फ़ संपत्तियों के हक़ की कानूनी लड़ाई लड़ें ।।

(इस लेख को शेयर करें , इनायत)

(एड. असद हयात)


Part 1
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Case of State of Hariyana vs Mukesh kumar

Dalveer Bhandari, J.

1. People are often astonished to learn that a trespasser may take the title of a building or land from the true owner in certain conditions and such theft is even authorized by law.

2. The theory of adverse possession is also perceived by the general public as dishonest way to obtain title to property.

Property right advocates argue that
mistakes by landowners or negligence on their part should never transfer their property rights to a wrongdoer, who never paid valuable consideration for such an interest.

3. The government itself may acquire
land by adverse possession. Fairness dictates and commands that if the government can acquire title to private land through adverse possession, it should be able to lose title under the same circumstances.

35 . A person. Pleading adverse possesion has no equities in his favour since he is trying to defeat the rights of the tru owner. It is for him to clearly plead and establish all facts necessary to establish adverse possession.

Though we got this law of adverse possession from the British, it is important to note that these
days English Courts are taking a very
negative view towards the law of
adverse possession.

The English law was amended and
changed substantially to reflect these changes, particularly in light of the view that property is a human right adopted by the European Commission. This Court
in Revamma (supra) observed that to understand the true nature of adverse possession, Fairweather v. St Marylebone Property Co [1962] 2 WLR 1020 : [1962] 2 All ER 288 can be considered where House of Lords referring to Taylor v. Twinberrow [1930] 2 K.B. 16 termed adverse possession as a negative and
consequential right effected only because somebody else’s positive right to access the court is barred by operation of law…

As against the rights of the paper-owner, in the context of adverse possession, there evolves a set of competing rights in favour of the adverse possessor who has,
for a long period of time, cared for the land, developed it, as against the owner of the property who has ignored the property..

36. The right to property is now considered to be not only constitutional or statutory right but also a human right.

Human rights have already been
considered in realm of individual rights such as right to health, right to
livelihood, right to shelter and
employment etc..

But now human rights are gaining a multi faceted dimension….

Right to property is also considered very much a part of the new dimension.

Therefore, even claim of adverse
possession has to be read in that context.

37. The changing attitude of the English Courts is quite visible from the judgment of Beaulane Properties Ltd. v. Palmer (2005) 3 WLR 554. The Courthere tried to read the human rights position in the context of adverse possession..

But what is commendable is that the
dimension of human rights have
widened so much that now property
dispute issues are also being raised
within the contours of human rights….

With the expanding jurisprudence of the European Courts of Human Rights, the Court has taken an unkind view to the concept of adverse possession.

42 . We inherited this law of adverse
possession from the British. The
Parliament may consider abolishing the law of adverse possession or at least amending and making substantial changes in law in the larger public interest.

The Government
instrumentalities –
including the police –

in the instant case have attempted to possess land adversely. This, in our opinion, a testament to the absurdity of the law and a black mark upon the justice system’s legitimacy.

The Government should protect the property of a citizen – not steal it. And yet, as the law currently stands, they may do just that. If this law is to be retained, according to the wisdom of the Parliament, then at least the law must require those who adversely possess land to compensate title owners according to the revalent market rate of the land or property in question. This alternative would provide some semblance of justice to those who have done nothing other
than sitting on their rights for the
statutory period, while allowing the
adverse possessor to remain on property.

While it may be indefensible to requireall adverse possessors – some of whom may be poor – to pay market rates for the land they possess, perhaps some lesser
amount would be realistic in most of the cases. The Parliament may either fix a set range of rates or to leave it to the judiciary with the option of choosing from within a set range of rates so as to tailor the compensation to the equities of
a given case.

43. The Parliament must seriously
consider at least to abolish “bad faith” adverse possession, i.e., adverse possession achieved through intentional trespassing.
Actually believing it to be their own
could receive title through adverse
possession sends a wrong signal to the society at large. Such a change would ensure that only those who had established attachments to the land through honest means would be entitled to legal relief.

44. In case, the Parliament decides to retain the law of adverse possession, the Parliament might simply require adverse possession claimants to possess the
property in question for a period of 30 to 50 years, rather than a mere
12. Such an extension would help to
ensure that successful claimants have lived on the land for generations, and are therefore less likely to be individually culpable for the trespass (although their forebears might). A longer statutory period would also decrease the frequency of adverse possession suits and ensure that only
those claimants most intimately
connected with the land acquire it, while only the most passive and unprotective owners lose title.

45. Reverting to the facts of this case, if the Police department of the State with all its might is bent upon taking possession of any land or building in a clandestine manner, then, perhaps no one would be able to effectively prevent them.

46. It is our bounden duty and obligation to ascertain the intention of the Parliament while interpreting the law. Law and Justice, more often than not, happily coincide only rarely we find serious conflict. The archaic law of adverse possession is one such. A serious re-look is absolutely imperative in the larger interest of the people.

47. Adverse possession allows a
trespasser – a person guilty of a tort, or even a crime, in the eyes of law – to gain legal title to land which he has illegally possessed for 12 years. How 12 years of illegality can suddenly be converted to
legal title is, logically and morally
speaking, baffling..

This outmoded law essentially asks the judiciary to place its stamp of approval upon conduct that the ordinary Indian citizen would find reprehensible.

48. The doctrine of adverse possession has troubled a great many legal minds. We are clearly of the opinion that time has come for change.

49. If the protectors of law become the grabbers of the property (land andbuilding), then, people will be left with no protection and there would be a total anarchy in the entire country.

50. It is indeed a very disturbing and
dangerous trend. In our considered view, it must be arrested without further loss of time in the larger public interest. No Government Department, Public
Undertaking, and much less the Police Department should be permitted to perfect the title of the land or building by invoking the provisions of adverse possession and grab the property of its
own citizens in the manner that has
been done in this case.

51. In our considered view, there is an urgent need for a fresh look of the entire law on adverse possession. We recommend the Union of India to
immediately consider and seriously
deliberate either abolition of the law of adverse possession and in the alternate to make suitable amendments in the law
of adverse possession. A copy of this judgment be sent to the Secretary, Ministry of Law and Justice, Department of Legal Affairs, Government of India for taking appropriate steps in accordance
with law.

52. This Special Leave Petition is
dismissed with costs of Rs.50,000/-
(Rupees Fifty Thousand only) to be paid by the State of Haryana for filing a totally frivolous petition and
unnecessarily wasting the time of the Court and demonstrating its evil design of grabbing the properties of lawful owners in a clandestine manner.

The costs be deposited within four weeks from the date of pronouncement of this
judgment. In this petition, we did not
issue notice to the defendants, therefore, we direct that the costs be deposited with the National Legal Services Authority for
utilizing the same to enable the poor
litigants to contest their cases.

53. This Special Leave Petition being
devoid of any merit is accordingly
dismissed.
…………………………….J.
(Dalveer Bhandari) ……………………………J.
(Deepak Verma) New Delhi:

September 30, 2011
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Part 2.
Case of Jaspal singh vs State of Panjab
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(Relevant paras of the Judgement)

3. Since time immemorial there have been common lands inhering in the village communities in India, variousl called gram sabha land, gram panchayat land, (in many North Indian States), shamlat deh (in Punjab etc.), mandaveli
and land (in South India),
Kalam, Maidan, etc., depending on the nature of user. These public utility lands in the villages were for centuries used for the common benefit of the villagers of the village such as ponds for various
purposes e.g. for their cattle to drink
and bathe, for storing their harvested
grain, as grazing ground for the cattle, threshing floor, maidan for playing by children, carnivals, circuses, ramlila, cart stands, water bodies, passages, cremation ground or graveyards, etc.These lands stood vested through local laws in the State, which handed over their management to Gram Sabhas/Gram
Panchayats. They were generally treated as inalienable in order that their status as community land be preserved. There were no doubt some exceptions to this
rule which permitted the Gram Sabha/ Gram Panchayat to lease out some of this land to landless labourers and members
of the scheduled castes/tribes, but this was only to be done in exceptional cases.

4. The protection of commons rights o the villagers were so zealously protected that some legislation expressly mentioned that even the vesting of the property with the State did not mean that the common rights of villagers were lost by such vesting. Thus, in Chigurupati
Venkata Subbayya vs. Paladuge Anjayya , 1972(1) SCC 521 (529) this Court observed :

“It is true that the suit lands in view of Section 3 of the Estates Abolition Act did vest in the Government. That by itself does not mean that the rights of the community over it were taken away. Our attention has not been invited to any provision of law under which the rights of the community over those lands can
be said to have been taken away.

The rights of the community over the suitlands were not created by the landholder. Hence those rights cannot besaid to have been abrogated by Section
3) of the Estates Abolition Act.”

5. What we have witnessed since
Independence, however, is that in large parts of the country this common village land has been grabbed by unscrupulous
persons using muscle power, money
power or political clout, and in many
States now there is not an inch of such land left for the common use of the people of the village, though it may exist on paper. People with power and pelf operating in villages all over India systematically encroached upon communal lands and put them to uses totally inconsistent with its original
character, for personal aggrandizement at the cost of the village community.

This was done with active connivance of the State authorities and local powerful
vested interests and goondas. This
appeal is a glaring example of this
lamentable state of affairs.
👇🏽

22. Before parting with this case we give directions to all the State Governments in the country that they should prepareschemes for eviction of illegal/unauthorized occupants of Gram Sabha/
Gram Panchayat/Poramboke/Shamlat land and these must be restored to the Gram Sabha/Gram Panchayat for the common use of villagers of the village.

For this purpose the Chief Secretaries of all State Governments/Union Territories
in India are directed to do the needful, taking the help of other senior officers of the Governments.

The said scheme should provide for the speedy eviction of such illegal occupant, after giving him a
show cause notice and a brief hearing.

Long duration of such illegal occupation or huge expenditure in making
constructions thereon or political
connections must not be treated as a justification for condoning this illegal act or for regularizing the illegal possession.

Regularization should only be permitted in exceptional cases e.g. where lease has 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 other public utility on the land.

23. Let a copy of this order be sent to all Chief Secretaries of all States and Union Territories in India who will ensure strict and prompt compliance of this order and submit compliance reports tothis Court from time to time.

24. Although we have dismissed this
appeal, it shall be listed before this Court from time to time (on dates fixed by us), so that we can monitor implementation of our directions herein. List again before us on 3.5.2011 on which date all
Chief Secretaries in India will submit
their reports.

………………………..J.
[Markandey Katju] …………….. ………..J.
[Gyan Sudha Mishra] New Delhi;
January 28, 2011