Friday, December 21, 2012

In Other Courts, New Delhi: Paras Ram v/s Gaon Sabha Dichaon Kalan...17th July 2012


Appeal No. 328/97
Paras Ram v/s Gaon Sabha Dichaon Kalan


IN THE COURT OF DY. COMMISSIONER & COLLECTOR
DISTRICT SOUTH WEST, DELHI

Paras Ram ............................................. Appellant

Vs.

Gaon Sabha Dichaon Kalan ........................................... Respondent



JUDGEMENT

This shall dispose of the appeal dated 10/01/1997 filed by the appellant hereinabove against the ejectment order dated 16/07/1992 of the SDM/RA (Punjabi Bagh) u/s 86A of DLR Act, 1954 in Case No.263/90. Vide the said order the SDM/RA has ordered for ejectment of the appellant hereinabove (respondent therein) from the suit land bearing Kh. No. 158/24/1 in revenue estate of village Dichaon Kalan. Aggrieved by the said order the appellant has preferred appeal before this Court.

The case of the appellant is that he is the owner and in possession of a house/baithak within the abadi of the village Dichaon Kalan, Delhi which he has constructed in the year 1950-51, that is prior to the commencement of the Delhi Land Reforms Act, 1954 and has been residing therein with his family since then, without any interference whatsoever from the Respondent and /or from anybody in the village. The appellant has also obtained electricity and water connection in the said house. That prior to the construction of the said house, the appellant had been using the said property in question as Gher/Baithak since the time of his forefathers. But due to the kacha structure, the same was washed away in heavy rains and as such the appellant has constructed the present house on the property, in question. The respondent has no right, title or interest whatsoever in the same.

The above said house of the appellant is surrounded by the residential houses of the other villagers and the school and the Panchayat-ghar of the village. That to the utter surprise of the appellant, the court of Shri H.R.Gaur, the then SDM/RA and the predecessor of the court of Smt. Renu Sharma, served notices u/s 86A of DLR Act, 1954 on the appellant and the other persons of the village, most of them named in Para no. 4 of the present petition. That, on enquiry it was found the said notice(s) were issued to the appellant and others on the basis of some report/complaint made by the Halqua Patwari to the learned court. That the learned court of Shri H.C.Gaur was pleased to agree to call for further detailed report regarding the alleged encroachment on the Gaon Sabha land, that is the village Johar in Khasra No. 158/24/1, but no such report has been filed by the Halqua Patwari in the court till today.

That the appellant was also directed to file his objections/written statement in the matter, but on the request of the learned counsel for the appellant, the learned court of Sh. H.C. Gaur agreed that first the above said detailed report is called for. As such the appellant did not file any objections/written statement in the matter because no report whatsoever was filed by the Halqua Patwari till the decision of the case. That even otherwise the appellant was not in a position to file his objections /written statement in the case because the notice served on the appellant was totally silent about the encroachment made by the appellant, if any, on the land of village Johar that is Khasra No. 158/24/1. In fact the notice itself was illegal, ultra vires and without jurisdiction and the same did not contain the requisite particulars regarding the alleged encroachment, which are required under the law and the rules, framed under the DLR Act, 1954.

That it would be note worthy to mention here that all the notices issued/served on the other villagers except the appellant either have been dropped, or the proceedings based upon the said notice (s) against them have been dropped by the learned court. It is the contention of the appellant that in addition to his submission in appeal, it is to be recorded that if LCR is not available then matter be remanded back for further inquiry since the contention urged in the appeal goes unrebutted.

The case of the respondent is that this is a clear cut case of encroachment whereby vide order dated 16/07/1992 in case no. 263/90 Ld. SDM/RA has ejected the appellant u/s 86 - A. The order is on record in the case, thus the appeal is liable to be dismissed.

After hearing the parties and perusing the material on record it has been observed this is a case where encroachment has been done on the Govt. land which is a Johar (village pond) and the same is admitted by the representative of the appellant hereinabove (respondent in the case before Ld. RA) as evident from the order dated 16/7/1992 of the SDM (Punjabi Bagh) which is on record. Therefore, though the contention of the appellant regarding the non-availability of the LCR is factually correct but it does not undermine the truth that the appellant is in illegal possession of the Govt. land and that too a Johar which is a subject matter of so many PILs before the higher Courts and where no. of directions have been passed by various courts and authorities to retrieve the water bodies. Notwithstanding the above facts the Hon Supreme Court in the judgement passed in Jagpal Singh & Ors Vs. State of Punjab and Ors in Civil Appeal No. 1132/2011 and SLP (c) No. 3109/2011 has emphasized that the encroachers and illegal occupants on the Gram Sabha land needs to be evicted and the Gram Sabha land needs to be retrieved and restored to the Gram Sabha.

In view of the above conclusions, the contention of the appellant that the possession over the said land implies his ownership is untenable and he is liable for ejectment which has been duly ordered by the Ld. SDM vide the impugned order. Regarding his contention that all the notices issued/served on the other villagers except the appellant either have been dropped, or the proceedings based upon the said notice (s) against them have been dropped by the learned court may be examined on merits by the Ld. trial court. Hence the order:

ORDER
In view of the observations made in the judgement I am of the opinion that the appeal dated 10/01/1997 of the appellant hereinabove against the ejectment order dated 16/07/1992 of the SDM/RA (Punjabi Bagh) u/s 86A of DLR Act, 1954 in Case No.263/90 in respect of suit land bearing Kh. No.158/24/1 (Village Johar) is devoid of merits. Accordingly the same is dismissed. The SDM/RA and BDO are directed to take further necessary action.

Given under my hand and seal of this court on this 17"' day of July2012.

Vikas Anand, IAS

Dy . Commissioner & Collector

Copy to:

  1. SDM, Najafgarh
  2. BDO, South West
  3. Both the parties


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