Mohan Lal and Others vs Gaon Sabha

V.K. Jain, J.—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. 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.

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.

The aforesaid conditional order dated 10th February, 2010 was followed by a final order dated 4th April, 2011 passed u/s 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.

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.

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 Another Vs. Samtya Dev and Another, 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 10th February, 2010 and 4th April, 2011 were passed without serving any notice upon the petitioners or not.

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.

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