09
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 3873/2008
% Date of decision : 10th November, 2009
DOODH NATH MAHADEO MANDIR SABHA (REGISTERED) ... Petitioner
Through Mr. Krishnamani, Sr. Adv. with Mr.
Rajat Aneja, Adv.
versus
UOI & ANR ..... Respondent
Through Mr. Ravinder Agarwal, CGSC with Mr. Girish
Pandey, Adv.
Mr. Anshum Jain and Ms. Suparna
Srivastava, Advocates for MCD.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
ORDER
1. The petitioner, Shri. Doodh Nath Mahadeo Mandir Sabha (Registered) has filed the present writ petition for issue of writ of mandamus to the respondents, Union of India, Land and Development Office (L & DO) and Municipal Corporation of Delhi to remove encroachments from the temple premises situated at Sector-5, R.K. Puram, New Delhi.
2. Counsel for the petitioner submits that that the said encroachments were made prior to 31st December, 1976, when the said land measuring 0.695 acres was allotted by the L & DO to the petitioner and, therefore, this writ petition in respect of prayers (a) should be entertained. In this connection, counsel for the petitioner has drawn my attention to the WPC NO.3873/2008 Page 1 letter dated 10th June, 1993, written by the Municipal Corporation of Delhi to a Member of Parliament. In this letter there is an averment that it was reported that the shops under reference were constructed prior to 1977 and were in existence even when the site was allotted to petitioner.
3. The said temple was constructed on public land in 1968 and unauthorized occupation of public land was subsequently regularized and the demand-cum-allotment letter dated 31st December, 1976, was issued by the L & DO. In paragraph 3(xi) of the writ petition it is stated that the encroachments were first removed/demolished by MCD/DDA in 1975 and there were no encroachments at the time of allotment in December, 1976. It is further stated that encroachments again cropped up in connivance with the L & DO, MCD and Police etc. during 1980s. Thus, the claim of the petitioner that these shops or encroachments were in existence as on 31 st December, 1976, when the allotment was made to the petitioner, is contradicted by the averments made in paragraph 3(xi) of the writ petition. The third parties, who are in occupation of the said shops, have not been impleaded. When the shops were constructed, how these shops were occupied and what were/are the terms and conditions are disputed questions of fact. It will not be appropriate to go into the said disputed questions of facts, that to without third parties being impleaded.
4. Counsel for the petitioner submits that third party occupants had filed a writ petition in this Court being W.P.(C) 3028/1998, which was WPC NO.3873/2008 Page 2 disposed of vide order dated 29th August, 2001. This writ petition was not entertained on the ground that the disputes raised in the petition pertain to disputed questions of facts, namely, whether the third party occupants were tenants, licencees or trespassers, whether the receipts issued were forged ones or not, and these question cannot be gone into in the exercise of writ jurisdiction and appropriate remedy for the third party occupants were before a civil forum. The said observations will equally apply to the petitioner. It may be noted that Mandir Market Welfare Asociation (Regd.) had filed a suit for permanent injunction, which was dismissed vide judgment dated 30th May, 2005. Learned Civil Judge had held that that the association had no locus standi to file the said suit. The said suit was not decided on merits.
5. Accordingly, the writ petition is not entertained as far as prayer
(a) is concerned. It is left open to the petitioner to invoke any other appropriate remedy as is available in accordance with law.
However, the prayer (b) still survives.
Admit only on the question of prayer b.
To be shown in the category of regular matters.
SANJIV KHANNA, J.
NOVEMBER10, 2009
NA/P
WPC NO.3873/2008 Page 3