Ram Narain Gupta & Ors vs Gaon Sabha, Siraspur
2011 Latest Caselaw 2410 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                Date of decision: 5th May, 2011

+                   W.P.(C) 2983/2011 & CM No.6343/2011 (for interim relief)

%        RAM NARAIN GUPTA & ORS                   ..... Petitioners
                     Through: Mr. A.K. Singla, Sr. Adv. with Mr.
                              Sheetesh Khanna, Adv.

                                      Versus

         GAON SABHA, SIRASPUR                   ..... Respondent
                      Through: Ms. Shobhana Takiar, Adv.
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 writ petition impugns the order dated 21st February, 2011 of the

Revenue Assistant/S.D.M., Narela disposing of proceedings under Section

81 of the Delhi Land Reforms (DLR) Act, 1954 against the petitioner no.2

Sh. Atul Gupta with respect to the land bearing Khasra No.729 Min (2-6)

situated in the revenue estate of Village-Siraspur. The Revenue

Assistant/S.D.M. has noticed the report of the Halqa Patwari that the land

had been put to non-agricultural use for unauthorized construction

contravening provisions of Section 81 (supra). Accordingly, it was

directed that the land be converted back into agricultural purpose within

three months from the date of the order and if it is not so converted back to

agricultural purposes, the petitioner no.2 shall stand ejected and the land

shall automatically vest in the Gaon Sabha, Siraspur.

2. It has at the outset been enquired whether there is no remedy under

the DLR Act itself against such an order.

3. The counsel for the respondent appearing on advance notice has

drawn attention to Serial No.17 in Schedule I to the Act which provides of

a remedy of appeal to the Deputy Commissioner against the order of the

Revenue Assistant/S.D.M. under Section 81 of the Act.

4. The senior counsel for the petitioners however has invited attention

to Rules 13 & 14 of Appendix VI to the Delhi Land Reforms Rules, 1954.

The said Appendix VI prescribes the procedure of Revenue Courts and

Revenue Officers. Rule 13 provides that whenever any party to the

proceedings neglects to attend on the date specified in the summons or on

any date to which the case has been postponed, the Court may dismiss the

case for default or may hear to determine it ex parte. Rule 14 provides that

no appeal shall lie from an order passed ex parte or by default under Rule

13.

5. The senior counsel for the petitioners contends that the order dated

21st February, 2011 aforesaid is an ex parte order. It is contended that a

bare reading of the order does not show that any notice was issued to the

petitioner no.2 or other petitioners or that they had failed to appear. He

contends that thus the remedy of appeal to the Deputy Commissioner is not

available. Reliance in this regard is placed on the Division Bench

judgment of this Court in Kamal Kant Baporia Vs. G.S. Kirari Suleman

Nagar 102 (2003) DLT 117.

6. All that the Division Bench has held in the judgment aforesaid is

that even though Section 81 does not provide for any notice but notice

before taking any action has to be issued in compliance of principles of

natural justice. It is not a judgment on the remedy of appeal under the Act

and the Rules.

7. Even if the argument of the senior counsel for the petitioners of no

notice having been given to the petitioners were to be accepted, the same

would still not negate the remedy of appeal under Rule 14 to Appendix VI

(supra). Rule 14 negates the remedy of appeal only when the order is ex

parte under Rule 13. Under Rule 13, the order can be ex parte only after

issuance of summons and failure to appear. If as contended by the

petitioners, no summons were issued and there was no failure to appear,

the order would not fall within the ambit of Rule 14 so as to bar the

remedy of appeal.

8. Moreover, Rule 14 itself though barring the remedy of appeal

permits the party prejudiced by such ex parte order under Rule 13 to

approach the Officer who had made such order for setting aside of the said

order. Thus either way, alternative remedies are available to the petitioners

and which have not been availed of.

9. The senior counsel for the petitioners has also purported to contend

that in the judgment in Kamal Kant Baporia aforesaid, the writ petition

was entertained. However, if the judgment has not noticed the availability

of the alternative remedy, the same cannot constitute a precedent for the

same.

10. It has been enquired from the senior counsel for the petitioners

whether the petitioners in the last nearly three months since the order, have

applied for or inspected the file of the Revenue Assistant/S.D.M. to find

out whether any notice was issued or not. It is fairly admitted that no such

effort has been made.

11. The senior counsel for the petitioners has further contended that the

area stands urbanized. Reliance in this regard is placed on House Tax

Assessment. Merely because house tax has been assessed would not mean

that the area has been urbanized. The Division Bench of this Court in Indu

Khorana Vs. Gram Sabha MANU/DE/0969/2010 held that the provisions

of the DLR Act would cease to apply only upon the issuance of a

Notification under Section 507 of the DMC Act. No such Notification has

been relied upon by the petitioners.

12. The senior counsel for the petitioners has further contended that

while there is construction in the entire area, only the petitioners are being

victimized.

13. The Apex Court recently in State of Bihar Vs. Kameshwar Prasad

Singh (2000) 9 SCC 94 and in Sarup Singh Vs. UOI AIR 2011 SC 514

has reiterated that there can be no claim on the basis of the negative

equality.

14. The writ petition is thus found to be not maintainable; the remedy of

the petitioners is before the alternative fora as aforesaid.

15. The senior counsel for the petitioners seeks a direction for the

appropriate fora to consider the matter without objection as to the

limitation. The provisions aforesaid empower the foras to on sufficient

cause being shown condone the delay in approaching. However, since the

senior counsel for the petitioners states that the petitioners were guided by

the Division Bench in Kamal Kant Baporia, it is deemed expedient to

order that subject to the appropriate fora being approached on or before

13th May, 2011, the concerned fora shall consider the matter without

objection as to the limitation. This is however subject to the condition that

the petitioners shall not alienate, encumber or part with possession of the

land/property and shall not make any additions, alterations or constructions

thereon.

16. The writ petition is dismissed as not maintainable with liberty to

avail remedy and to take all pleas as taken herein before the appropriate

fora.

No order as to costs.

CM No.6344/2011 (for exemption)

Allowed, subject to just exceptions.

Copy of this order be given Dasti under signature of the Court

Master.

RAJIV SAHAI ENDLAW (JUDGE) MAY 05, 2011 bs