Alka Jain vs Nct Of Delhi And Ors
2010 Latest Caselaw 3135 Del

              *IN THE HIGH COURT OF DELHI AT NEW DELHI


+ W.P.(C) 4414/2010 & CM No.8772/2010 (u/S 151 CPC for interim relief)

                                                                       Date of decision: 7th July, 2010.
%

ALKA JAIN                                                                ..... Petitioner
                                        Through: Mr. Sandeep Khatri, Advocate

                                                       Versus

NCT OF DELHI AND ORS                            ..... Respondents
                  Through: Mr. Najmi Waziri, Advocate for R-1.

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.        Whether reporters of Local papers may
          be allowed to see the judgment?                                     No

2.        To be referred to the reporter or not?                              No

3.        Whether the judgment should be reported                             No
          in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petitioner, claiming to be the owner of land in village Nangli

Poona, Delhi, by this writ petition seeks to restrain the respondents from

dispossessing her therefrom pursuant to the order dated 22nd February, 2002

of the respondent no.2 SDM/Revenue Assistant, Narela vesting the said land

in the Gaon Sabha, under the provision of Section 81 of the Delhi Land

Reforms Act, 1954.

2. It appears that the proceedings under Section 81 of the Delhi Land

Reforms Act commenced in or about the year 1993. The petitioner acquired

the said land vide Sale Deed of the year 1996. The said Sale Deed was

executed pursuant to the NOC issued by the respondents. Though in the

said NOC, it is recorded that there is a report under Section 81 of the Act of

the year 1989 with respect to the said land but it is further stated that at the

spot, the predecessor in interest of the petitioner was sowing the crop and

the land till then had not vested in the Gaon Sabha; accordingly the NOC for

transfer of land in favour of the petitioner was issued.

3. It appears that the proceedings under Section 81 aforesaid

commenced in the year 1993 resulted in the order dated 22nd February, 2002

(supra) of vesting of land in Gaon Sabha. The counsel for the petitioner

states that the petitioner was never served with any notice of the said

proceedings and had no knowledge of the same till now when he was sought

to be dispossessed in pursuance to the order aforesaid. Though there is

certain amount of negligence on the part of the petitioner also in,

notwithstanding the notice as aforesaid of the proceedings under Section 81

of the Act pending even at the time of his purchase, not pursuing /

contesting the same but the fact remains that the respondents issued the

NOC and in pursuance whereto the Sale Deed was executed in favour of the

petitioner. The respondent no.2 ought to have given notice to the petitioner

who on execution of Sale Deed became owner / bhoomidar of the land, and

heard the petitioner before making any order vesting the land in the Gaon

Sabha and the petitioner was to be ejected therefrom; particularly when even

after 1996 the proceedings remained pending till 22nd February, 2002 as

aforesaid.

4. An order under Section 81 of the Act has serious and adverse

consequences (See Rajwanti Vs. Govt. of NCT of Delhi

MANU/DE/0469/2010). The Division Bench of this Court in Kamal Kant

Baporia Vs. G.S. Kirari Suleman Nagar MANU/DE/1863/2002 held:

"It is true that these provisions (Section 81&82) per se don't stipulate issue of notice to the Bhumidar/Asami concerned but such notice would have to be read in these because his property could not be taken at his back in violation of principles of natural justice. He had a right to show in the proceedings taken against him that he had not committed any breach or the action alleged against him was justified".

5. The counsel for the respondents appearing on advance notice has

fairly stated that instead of issuing notice of the present petition and keeping

the same pending here, it will be expedient to remand the same to the

respondent no.2 to dispose of the same after giving an opportunity of

hearing to the petitioner. This course, I find was followed by the Division

Bench of this Court in Rajkumar Vs. Financial Commissioner

MANU/DE/3373/2009.

6. The counsel for the respondents at this stage clarifies that the said

statement has been made for the purpose of expediency and without

verifying the records and merely on the basis of the statement on oath of the

petitioner that the petitioner was not heard and no notice was issued to the

petitioner. In the circumstances, if it is found that the petitioner herein was

served with the notice of the proceedings or had participated and / or had

been heard before the order dated 22nd February, 2002 was made, it shall be

open to the respondents to apply to this Court for revocation of this order

and for proceeding against the petitioner for perjury.

7. The counsel for the respondents at this stage has also contended that

this writ petition is not maintainable for the reason of remedy of appeal

before the Deputy Commissioner being available to the petitioner against the

order dated 22nd February, 2002 of the SDM/Revenue Assistant, Narela.

The counsel for the petitioner controverts contending that since no suit or

proceeding under Section 81 was initiated against the petitioner, the

petitioner could not have availed herself of the remedy of appeal. It is made

clear that this point is left open and this order is not to be a precedent.

8. The petition is allowed in aforesaid terms. The order dated 22 nd

February, 2002 of the SDM / Revenue Assistant, Narela vesting the land of

the petitioner in the Gaon Sabha is set aside and the matter is remanded for

adjudication afresh after giving an opportunity of hearing to the petitioner.

9. The counsel for the respondents further states at this stage that he has

no instructions whether the petitioner is still in possession of the land or not.

In the circumstances, it is directed that if the petitioner has not been

dispossessed as yet, he be not dispossessed till the decision on remand by

the Revenue Assistant. The petitioner is further restrained from alienating,

encumbering and parting with the possession and/or raising construction on

the land till the final decision as aforesaid.

10. In the aforesaid terms, the writ petition is disposed of. Parties to bear

their own costs.

Dasti under signature of the Court Master to the counsel for the

parties.

CM No.8773/2010 (u/S 151 CPC for exemption)

Allowed, subject to just exceptions.

RAJIV SAHAI ENDLAW

(JUDGE) th 7 July, 2010 gsr