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:
- SDM, Najafgarh
- BDO, South West
- Both the parties
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