Mohan Lal And Ors vs Gaon Sabha, Bakhtawar Pur
2013 Latest Caselaw 2244 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                       Date of Decision: 14.05.2013

+      W.P.(C) 1244/2013 and CM No. 2360/2013 (stay)

       MOHAN LAL AND ORS                                 ..... Petitioners
                   Through              Mr. Shalabh Gupta, Advocate

                            versus

       GAON SABHA, BAKHTAWAR PUR             ..... Respondent
                    Through Ms. Sonia Sharma, Advocate

CORAM:
HON'BLE MR. JUSTICE V.K.JAIN

                            JUDGMENT

V.K.JAIN, J. (ORAL)

1. The petitioners are the bhoomidars of land measuring 2 bigha 14 biswa

comprised in Khasra No. 29/1/1 in Village Bakhtawar Pur, Tehsil Narela, Delhi

and claim to be cultivating the said land for several decades.

2. It was reported by the Halqa Patwari to the concerned Magistrate and

Revenue Assistant that illegal/unauthorized construction/ unauthorized non-

agricultural use of agricultural land was going on over the said land. Vide order

dated 13.4.2009, the concerned SDM/Revenue Assistant, exercising powers under

Order 39 Rule 1 and 2 of CPC read with the provisions of Section 83 of Delhi Land

Reforms Act, 1954 directed that all kind of illegal constructions/non-agricultural

activity on the aforesaid land be stopped immediately, by the

Bhoomidar/respondent till further orders. It was further directed that a copy of the

order be served upon the respondent by post or in person and by pasting. Pursuant

to the aforesaid order passed by the concerned SDM/Revenue Assistant, a notice

addressed to the petitioners namely Mohan Lal, Ved Ram, Raj Kumar and Ram

Singh of Village Bakhtawar Pur was issued requiring them to appear before the

SDM/Revenue Assistant on 21.4.2009.

3. A conditional order dated 10th February, 2010 was then passed by the

Revenue Assistant/SDM, Narela, directing that the aforesaid land be converted

back into agricultural purpose within three months from the issue of order. It was

further directed that if the respondents did not convert the land back to agricultural

use, they shall stand evicted from the aforesaid land which shall then automatically

be passed to the Gaon Sabha, Bakhtawar Pur without any further reference to the

respondents.

4. The aforesaid conditional order dated 10th February, 2010 was followed by a

final order dated 4th April, 2011 passed under Section 81 of the Delhi Land

Reforms Act, 1954. A perusal of the aforesaid order would show that the Halqa

Patwari had reported on 4th April, 2011 that the respondents had not complied with

the conditional order dated 10th February, 2010 and the land in question had not

been brought back into agricultural use.

5. The grievance of the petitioners before this Court is that the conditional

order dated 10th February, 2010 and the final order dated 4th April, 2011 were

passed ex parte without serving any notice upon them and without giving them any

opportunity of hearing to them.

6. The learned counsel for the petitioner has drawn my attention to paragraph

14 of the Appendix-VI to Delhi Land Reforms Rules, 1954 which provides that no

appeal shall lie from an order passed ex parte or by default. In view of the above

said statutory bar contained in Appendix-VI to Delhi Land Reforms Rules, 1954, it

has been held by this Court in Rita Choudhrie and Anr. vs. Samtya Dev & Anr.

109 (2004) DLT 5 that a petition under Article 227 of the Constitution of India is

maintainable against the said order, since an appeal against an order of this nature

does not lie. Hence, the only question which arises for consideration in this writ

petition is that whether the orders dated 10 th February, 2010 and 4th April, 2011

were passed without serving any notice upon the petitioners or not.

7. As noted earlier, the learned SDM, while passing the order dated 13.4.2009

directed service of the respondents in that matter i.e. the petitioners before this

Court by post as well as by pasting. There is no evidence of any notice having

been sent to the petitioners by post. I have perused the file of the SDM which has

been received from his office. The file does not indicate even despatch of any

notice by post. Therefore, despite the order dated 13.4.2009 passed by the learned

SDM, no notice by post was sent to the petitioners. The concerned SDM did not

even advert to this, while passing the ex parte orders. For this reason alone, the

writ petition is required to be allowed.

8. Coming to the alleged pasting notice at site, a perusal of the report on the

back of the notice would show that it does not bear the date or time of the alleged

pasting. There is no explanation as to why the report does not bear even the date of

the process server. In the absence of noting of the date, it cannot be known on

which date the notice is alleged to be pasted.

9. In these circumstances, I am satisfied that the ex parte orders dated 10 th

February, 2010 and 4th April, 2011 were passed without serving the requisite notice

upon the petitioners. The impugned orders dated 10th February, 2010 and 4th April,

2011 are therefore quashed. The petitioners are directed to furnish the reply to the

notice within four weeks from today. The petitioners shall appear before the

concerned SDM on 2nd July, 2013. The SDM shall thereafter pass such order as he

deem appropriate after considering the reply of the petitioners and giving an

opportunity of hearing to them.

The file of the SDM be sent back forthwith. The writ petition stands

disposed of.

V.K. JAIN, J MAY 14, 2013 sd