Delhi District Court in Gaon Sabha Mandoli & Anr. v. Sh. Dayanand & Ors. [Order dated 09.05.2013]

IN THE COURT OF SHRI VINOD GOEL, DISTRICT & SESSIONS 

JUDGE: SHAHDARA: KARKARDOOMA COURTS, DELHI 

M.C.A. No. 17/12 

1. Gaon Sabha Mandoli Through B.D.O. North­East, D.C. North­East Office Complex, Nand Nagri, Delhi ­110093 
2. Union of India Through Director of Panchayat, Old Tehsil Building, Tis Hazari Court, Delhi­ 110054     

                                                                                                        .....Appellants/Defendants 

 Versus 

1. Sh. Dayanand S/o Late Sh. Bhagwat Prasad R/o Plot No. 652, Village Mandoli Delhi­110093. 
2. Smt. Sarita Devi W/o Sh. Subhash Chand R/o 17­A, Main Road Gali, Mandoli, Delhi­110093. 
3. Sh. Subhash Tyagi S/o Sh. Jagan Singh R/o 653, Mandoli Main Road, Delhi­110093. Gaon Sabha Mandoli & Anr. vs. Dayanand & Ors. MCA No.17/12 Decided on 09.05.2013 Page 
4. 4. Sh. Anil Kumar Tyagi S/o Sh. Onkar Tyagi, R/o 654, Mandoli Main Road, Delhi­110093. 
5. 5. Sh. Mukesh S/o Sh. Ravti Prasad R/o 17­A, Mandoli Main Road Gali, Village Mandoli, Delhi­110093.

 .....Respondents/Plaintiff 

Date of Institution : 01.06.2012 

Arguments heard on : 30.04.2013 

Date of decision : 09.05.2013 

Appeal u/s 104 r/w order XLIII CPC against the impugned order dated 02.05.2012 passed by Sh. Anil Kumar Sisodia, SCJ (North East) in Suit No.49/2012 titled as Dayanand and Ors. versus Gaon Sabha Mandoli & Anr. 

JUDGEMENT

1. The appellants/defendants have invoked the appellate jurisdiction of this court u/s 104 r/w order XLIII rule 1 CPC feeling aggrieved by the order dated 02.05.2012 passed by the court of Sh. Anil Kumar Sisodia, Sr. Civil Judge, North East, Karmardooma Courts, Delhi, in suit no. 49/12 vide which the appellants/defendants were restrained from evicting the respondents/plaintiffs from the suit property only with due process of law till the final disposal of the suit.

2. The brief facts for disposal of this appeal are that the respondents/plaintiffs filed a suit for permanent injunction against the appellants/defendants in respect of Khasra No.26/13 situated in the Abadi of Village Mandoli, Delhi, claiming themselves to be the owners in possession. It is alleged that the appellants/defendant no.1 has served them with a notice dated 5.3.2012 asking them to vacate the suit property within 15 days failing which demolition proceedings would be taken up.

3. In their joint written statement it is pleaded by appellants/defendants that they have initiated the proceedings against the respondents/plaintiffs as per the directions of the Hon'ble Supreme Court in a case titled as Jagpal Singh and others vs. State of Punjab and ors. 2011 II AD (SC) 396 as the suit property is a Gaon Sabha land which has been encroached upon by the respondents/plaintiffs. It is also pleaded that the respondents/plaintiffs have encroached upon a rasta/thoroughfare falling in Khasra No.98, Mandoli, which is owned by Gaon Sabha. 

4. Respondents/plaintiffs filed replication to the WS of appellants/defendants denying the allegations made in the written statement and re­affirming the averments made in the plaint.

5. Vide impugned order dated 2.5.2012 the Ld. Trial Court has restrained the appellants/defendants from evicting the respondents/plaintiffs from the suit property in due course of law till the final disposal of the suit and it is against this order the appellants/defendants have come up in the present appeal.

6. I have heard Ld. Counsels for the parties and very carefully perused the material available on record.

7. Ld. Counsel for the appellants/defendants argued that the suit property falls in Khasra No. 98 which is a thoroughfare and owned by Gaon Sabha, Mandoli, and the respondents/plaintiff have pleaded that khasra number of the suit property as 26/13 in their plaint. He further argued that they have issued a notice dated 5.3.2012 to the respondents/plaintiffs in accordance with law in view of the judgment of Hon'ble Supreme Court in Jagpal Singh's case (supra) and when the appellants/defendants have issued the notice to the plaintiffs/respondents in due process of law, the impugned order should not have been passed by the Ld. Trial Court. A perusal of the judgment of Hon'ble Supreme Court in Jagpal Singh's case (supra) is relevant and para 22 of the judgment reads as under:

"Before parting with this case we give directions to all the State Governments in the country that they should prepare schemes 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 occupants, 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."

8. A perusal of this judgment of Hon'ble Supreme Court in Jagpal Singh's case (supra) shows that Hon'ble Supreme Court has directed all the State Governments to prepare schemes for eviction of illegal/unauthorized occupants of Gram Sabha/Gram Panchayat/Poramboke/Shamlat land and restore Shamlat land to Gram Sabha/Gram Panchayat for the common use of villagers and such schemes shall provide for speedy eviction of such illegal occupants after giving him a show cause notice and a brief hearing. At the time of arguments, Ld. Counsel for the appellants/defendants has fairly admitted that no such scheme has so far been framed by the Government of NCT of Delhi for eviction of illegal/unauthorised occupants from the Gram Sabha land. During the course of arguments, Ld. Counsel for appellants/defendants has placed on record a copy of the impugned notice dated 5.3.2012 in which the appellants/defendants have directed the plaintiffs/respondents to vacate and remove their encroachment over the Gram Sabha land consisting of Khasra no. 98 (rasta) within 15 days from the issuance of the notice or face demolition of the same. It is well settled principle of law that even a trespasser cannot be evicted forcibly and even an illegal occupant of the land has to be evicted in due process of law i.e. by following the prescribed procedure under the law and even the State Authorities cannot dispossess a person by an executive order and the authorities cannot become the law all unto themselves and it would be in violation of rule of law and the government can resume possession only in a manner known to or recognised by law and not otherwise. This is so held even recently by the Hon'ble Supreme Court in Meghmala & Ors. Vs. G. Narasimha Reddy & Ors. 2011 (3) Civil Court Cases 006 (SC) following its own several judgments.

9. In the present case also vide notice dated 5.3.2012 it appears that the appellants/defendants have directed the plaintiffs/respondents either to vacate and remove encroachment from the suit property within 15 days or face demolition of the same. Even if the possession of the plaintiffs/respondents is as a trespasser they could not be evicted forcibly from the suit property and the possession thereof can be taken from them only in due process of law. Accordingly, I do not find any illegality or impropriety in the order of the Ld. Trial Court dated 2.5.2012. Appeal is devoid of any merit and the same is dismissed with no order as to cost. Trial Court record be sent back with an attested copy of the instant order. Appeal file be consigned to record room.