Radhey Sham vs Delhi Administration, Delhi And ...
1969 Latest Caselaw 163 Del

JUDGMENT

S.K. Kapur, J.

(1) -THIS order will dispose of Civil Writ Petition No. 546 of 1969 (Brij Mohan . Lt Governor and others) and Civil Writ Petiton No. 550 of 1969 (Radhey Sham . Lt. Governor and others). Except for some minor variations in certain affidavits, the facts of the case are practically the same and I will, therefore, confine my statemeuld be open to public and would be a public place in terms of Article 15 of the Constitution of India. It would be anamenity th to the petitioner and his family members and a place of public recreation where any member of the public, including the petitioner and his children, would have free access without any discrimination on the basis of rac religion, sex creed etc. etc. that the Delhi Improvement Trust the predecessor of sixth respondent (Delhi Development Authority) requested the Secretary. Local Self-Government, Delhi State to procure the approval of Union of India for the transfer of the area to the then Municipal Committee; that the Delhi Development Authority vide its resolution No. 132 dated March 26, 1958, gave its approval, subject to the sanction of the Union of India, to the allotment of the area to Municipal Corporation of Delhi for the purpose of laying out a children park and fixed a rental of rupee one per annum payable by the Municipal Corporation to the Delhi Development Authority; that in 1961 a development plan was prepared and the said area "measuring 750 sq. yards or thereabout was chosen and selected for laying out of a children park."; that the Central Government accorded its approval to the Delhi Development plan prepared by Delhi Development Authority which, inter alia, included the lay out of the children park in the said area; that the Delhi Development Authority "found in 1961 that this land belonged to the Government and was a vacant site and eminently suitable and available for laying out of a children park"; that according to section 429 of the Delhi Municipal Corporation Act, after the preparation of a Master Plan or a Zonal Development scheme or housing scheme can be put into operation by the Commissioner of Municipal Corporation of Delhi "in so far as it concerns the area within the municipal limits of Delhi"; that towards the end of the year 1968, certain unauthorised structures were set up by some Muslims in a part of the said area; that Respondents 2 to 5 "cannto claim any interest in a property which does nto fall within the definition of section 3(1) of the Muslim Wakf Act, 1954"; that no person professing Islam dedicated part of the said area because it did nto belong to any person but belongs to public in general and is nto the property of any particular minority or majority community of .Delhi; that consequently the Delhi Wakf Board (second respondent) could nto claim any interest in the said piece of land; that the Municipal Corporation served notice in respect of the said unauthorised construction, directing removal thereof: that the unauthorised occupants attempted to lend a religious colour to the situation that arose on account of demolition notice and raised a plea that the said alleged unauthorised structure was in fact "Sikandaria Mosque" which had stood there for a very long time; that this allegation was false to the knowlmposed. "THEREFORE,I the Lt. Governor of Delhi in exerabe of powers vesting in me under section 487 of Delhi Municipal Act, 1957 (66 of 1957) read with Government of India, Ministry of Home Affairs notification No. 3/6/66- Delhi, dated 19-10-1966, hereby directed the Commissioner Delhi Municipal Corporation to forthwith sanction the reconstruction by or on behalf of Delhi Wakf Board of portion demolished to the extent as may restore the shape and position of building as it existed on 26th day of May 1969...."

(2) It is appropriate to set out the earlier order of demolition dated May 14, 1969, issued by the Lt. Governor. The said order reads : ''..........Iam directed to convey the approval of the Lt. Governor for the demolition of "unauthorised construction in Masjid Sikandaria, 6515, Idgah Road, near Chamelian Road, Delhi. A compliance report may also be sent for the information of the Lt. Governor. While carrying out the clearance operation care should be taken to ensure that there is no damage done to the mosque. ......."'

(3) Mr. Lekhi who led the arguments in Civil Writ 550 of 1969 drew our attention to certain affidavits in his effort to show that in fact the mosque never existed on the said site till about 1968 when it was set up only to grab the area by giving the matter a religious colour. He referred us to the counter-affidavit of Zahirud-Din Siddiqi, Assistant Secretary, Delhi Wakf Board, in which is stated that "the property in dispute is known as Masjid Sikandria lmliwali Municipal No. 6515, Ward No. Xiv, with its allied land. It consists of a mosque and appurtenant land measuring 75' 3" x 93' with a boundary wall on all sides and entrance gate..........". Mr. Lekhi said that in fact No. 6551, Ward No. Xiv, is a house situate about 400 yards away from the land and the said unauthorised mosque bears No. 6515A. He drew our attention to photograph (Exhibit R.W. 2/5) annexed to the counter-affidavit of Shri Siddiqi on which it is inscribed "Shahi Masjid Sikandria 6515A" and to Annexure G to the petitioner's affidavit in the rejoinder to the counter-affidavit of Shri Siddiqi which according to Mr. Lekhi shows that building bearing No. 6515 in ward No. Xiv is nto a mosque but a house. From all this, he wanted us to deduce that the construction was unauthorised and the lieutenant Governor therefore could nto direct its re-construction as he has done by impugned order dated June 27, 1969. The second ground of attack put forward by Mr. Lekhi was that the property did nto belong to the Wakf and therefore the Lieutenant Governor could nto have directed the Commissioner, Delhi Municipal Corporation "to forthwith sanction the reconstruction by or on behalf of Delhi Wakf Board of portion demolished to the extent as may restore the shape and position of building as it existed on 26th day of May 1969. . . .". To further support this argument, he referred to the affidavit of Shri M.D. Tyagi filed on behalf of the first and the third respondents, the Lieutenant Governor of Delhi and Union of India respectively, wherein Shri Tyagi says "the property in dispute described in the said paragraph is a Muslim Wakf property known' as Masjid Sikandria lmliwali Municipal No. 6515, Ward No. Xiv with its allied land, consisting of a mosque and appurtenant land with a boundary wall on all sides and entrance gate. This mosque had been in existence on the land for a long period of time." Mr. Lekhi pressed on us to pronounce these allegations as false having regard to the statements contained. in the counter-affidavit of Shri M. L. Mongia, Secretary, Delhi Development Authority, that the revenue records show the land as a vacant site; that the land belongs to the Government and is vested in the Delhi Development Authority for the purpose of management and that "according to a letter dated 16-1-1963 received from the Municipal Corporation of Delhi by the answering respondent, it transpires that a sign board with the words "Shahi Masjid Sikandari Shahid Qadimi" was- found affixed on the boundary wall of the plto in question" and in the counter-affidavit of Mr. A. J. Kundan filed on behalf of the Lieutenant Governor, 1st respondent in the connected Writ Petition No. 546 of 1969, in paragraph 10 whereof a reference has been made to the affidavit filed on behalf of the sixth respondent. In the affidavit filed by Shri M. L. Mongia on behalf of the sixth respondent, Delhi Development Authority in Civil Writ 546 of 1969, it is again stated that "the land in question belongs to the Central Government and is under the control and management of the answering respondent". Mr. Lekhi contended that if mosque had existed for time immemorial as alleged, a resolution could nto have been passed in March 1958 by Delhi Development Authority giving approval to the allotment of the land to the Municipal Corporation of Delhi for laying out a children park.

(4) It is appropriate at this stage to read the relevant parts of the affidavit by Shri M. L. Mongia, Secretary, Delhi Development Authority which discloses the position of the area in dispute. Some of the averments contained in the said affidavit have already been set out. It is further stated therein that the said land is nto shown as children park in the Master Plan; that "the land in question has nto been declared as a development area under section 12 .of the Delhi Development Act, 1957. No sur vey of this area was carried out in 1961 nor was any plan for development made in 1961 in pursuance to the same"; that "It is denied that the Central Government accorded its approval to the alleged development plan. The site which was shown as vacant site in the revenue records was proposed to be transferred to Municipal Corporation of Delhi for children park vide Resolution No. 132 dated 26-3-1958 passed by the answering respondent, however, due to unauthorised encroachments, the land could nto be handed over to the Municipal Corporation of Delhi"; that " in the revenue records right from 1917-18 to date the site under reference has been shown as vacant"; that "according to a letter dated 16-1-1963 received from the Municipal Corporation of Delhi by the answering respondent, it transpires that a sign board with the words "Shahi Masjid Sikandari Shahid qadimi "was found affixed on the boundary wall of the plto in question"; that "the property has nto yet been transferred by the answering respondent to any other body for utilising the same for the general public. Therefore, the question of any right or benefit accruing to the petitioner cannto arise"; that "the Master Plan was approved by the Central Government in 1962 The Land Use Plan of the Master Plan does nto show any children park in the site under reference which is classified as residential, but no zonal development plan has been prepared. The question of showing such a park at the site in question, therefore, does nto arise. Consequently the order of Respondent No. I referred to in the para is nto violative of section 11(a) of the Delhi Development Act read with section 429 of the Municipal Corporation of Delhi Act" and that the petitioner has no right, title or interest in the land in question. The second respondent Delhi Wakf Board, however, claims the property as wakf property and to support the claim its learned counsel relied, inter alia, on the counter-affidavit of Shri Siddiqi as well as the certificate of registeration dated Marh 4, 1966, Annexure R.2/1 to the said affidavit. I will now devote a few words to the divergence pointed out by Mr. Lekhi in the affidavits filed in the two writ petitions. According to Mr. Lekhi the allegations in paragraphs 7, 10, 12, 13 and 17 and in in paragraphs dealing with grounds 5 and 6 of the petition run counter to the allegations in the affidavit of Mr. Kundan filed in Civil Writ Petition No. 546 of 1969. In the view that I am taking it is nto necessary either to elaborate on the allegations or to pronounce on the question whether or not, there is in fact any divergence.

(5) The other points raised by Mr. Lekhi were :

(1)The impugned order dated June 27, 1969 has been passed by the Lieutenant Governor under section 487 of Delhi Municipal Corporation Act. The power under the said provision can be exercised only by the Central Government and nto by the Lieutenant Governor. He referred to the definition of "Administrator" in section 2 of Delhi Municipal Corporation Act which is "the Administrator of Union territory of Delhi" and to sections 87, 267 and 269 whereby certain functions have been assigned to the Administrator. His argument was that a complete dichotomy has been maintained between the powers of the Administrator and the Central Government and wherever the statute required certain powers to be exercised by the Administrator it has been so stated specifically in the Act. That dichotomy according to the learned counsel excludes the right of the Administrator to act for the Central Government;

(2)Since the Impugned order necessarily resulted in encroachment on Government land, the Lieutenant Governor was nto competent to pass the same;

(3)The order is extremely vague and indefinite;

(4)Power under section 487 can be exercised if the Central Government is of the opinion that "any duty imposed on the Corporation or any municipal authority by or under this Act has nto been performed or has been performed in an imperfect, insufficient or unsuitable manner". In this case no one ever applied for grant of sanction to reconstruct the mosque or for approval of the plans which could be approved by municipal authorities, with the result that there was neither nonperformance of any duty nor performance in an imperfect, insufficient or unsuitable manner. Mr. Lekhi referred to the various provisions of the Act and the building bye-laws in support of his plea;

(5)Under sections 336, 337, 343 and 344 of the Delhi Municipal Corporation Act, the discretion to sanction construction or reconstruction vests with the municipal authorities and the Central Government could nto impose its will in the matter;

(6)In the absence of notification under section 5 of Delhi Muslim Wakfs Act. 1954, the property could nto be treated as wakf property and permission to reconstruct the mosque is violative of Article 15(2)(b) of the Constitution of India as it subjects the petitioner and the members of his family to disability or restriction in the use of place of public resort maintained wholly or partly out of the State fund on the "grounds only of religion ........". In elaboration of this argument Mr. Lekhi contended that the existence of mosque would necessarily place the petitioner under restriction because he will nto be in a position to enter the mosque without observing certain formalities;

(7)Power under section 487 has to be exercised in a quasijudicial manner and should have been passed after hearing the parties affected, and

(8)the exercise of power under the proviso to section 487 dispensing with the opportunity to the Corporation of being heard was mala fide as there existed no urgency necessitating such dispensation.

(6) The respondents raised a preliminary objection about the maintainability of the petition at the instance of the petitioner whom the repondents described as an "utter stranger".

(7) For disposal of this objection, I would like to recall the facts emerging out of the counter-affidavit filed on behalf of the Delhi Development Authority as that affidavit appears to fairly disclose the position of the disputed area. Those are: that the said land has neither been shown in the Master Plan as children park nor has it been handed over to the Municipal Corporation for a children park; that the land has nto been declared as development area; that in spite of resolution dated March 26, 1958, the land could nto be handed over to Municipal Corporation of Delhi; that the land still belongs to the Central Government; that the land has nto been transferred to any other body or authority for being utilised for the general public; that the Land Use Plan of the Master Plan does nto show any children park in the area under reference which is classified as residential; and that no zonal development plan has been prepared. In that situation it cannto be said that the petitioner has any right of access over the area. Moreover the area cannto be treated as a place of public resort. As a matter of fact, Mr. Lekhi admitted that a part of mosque still stands on the land in question, but according to him it has been put up in the year 1968. The photographs referred to alreay show that a substantial part of the mosque still exists in spite of demolition. If the petitioner has no right of access over that land, the very foundation of his grievance disappears. Mr. Lekhi argued and took recourse to various decisions in support of his proposition that a ratepayer can competently petition to a court for redress of his grievance that the funds of the State are nto being utilised in accordance with law, and every rate-payer can ask for a direction to the State to conform to the laws. He relied on Calcutta Gas Company v. State of West Bengal (1), State of Punjab v. Suraj Parkash Kapur (2) The Municipal Corporation for the City of Bombay v. Govind Laxman Savant (3), Krishna Kali Mallik v. Babulal Shaw (4) N.V.Subba Rao v. Government of Andhra Pradesh (5) and K.C.Pazhanimala v. State of Kerala (6).

(8) I will first deal with the two Supreme Court decisions. In Calcutta Gas Company's case it was held that the existence of right was the foundation of exercise of jurisdiction of Court under Article 226. Under an agreement the applicant had the right to manage the Oriental Gas Company for a period of twenty years and to receive remuneration. Section 4 of the impugned Act abridged that right. Their Lordships of the Supreme Court in the circumstances decided that the applicant had locus standi to file the petition. This case can be of no assistance to the petitioner as there the impugned legislation directly affected the right to manage the company.

(9) In Suraj Parkash Kapur's case their Lordships of the Supreme Court observed that "the right that can be enforced under Article 226 of the Constitution must ordinarily be the personal or individual right of the applicant". In that case, the respondents' family was allotted certain land but as a result of scheme for consolidation of holdings some different area was proposed to be substituted for the land already allotted. The objections filed by the respondents were rejected but as a result of the Displaced Persons (Compansation and Rehabilitation) Act coming into force the Central Government issued a notification acquiring all evacuee properties to which the said Act applied. On February 23, 1956, the Central Government issued a sanad conferring proprietary rights on the respondents in respect of the lands allotted to them earlier. Before the issue of sanad, the respondents filed a petition in the High Court under Article 226 of the Constitution for quashing of the scheme of consolidation. The High Court allowed the said petition and issued a direction to the Consolidation Officer to proceed with the matter before him in accordance with law. The State of Punjab went up in appeal to the Supreme Court and an objection was taken that the respondents had no legal right to maintain the petition. It was held that on the date the respondents filed the petition they had a very valuable right in the properties allotted to them and that entitled them to ask the High Court for relief. It may be noticed that the petitioner in this case was also directly affected by the impugned Act.

(10) In Govind Laxman Savant's case, tenders when were invited by the Municipality of Bombay for carrying out certain works and three parties tendered. The tender of one of them was accepted and a petition was filed under section 45 of the Specific Relief Act praying that the Municipal Commissioner and the Corporation be ordered to forbear from concluding and executing the contract with the said tenderer. The maintainability of the petition at the instance of the petitioner a rate-payer was challenged on the ground that the petitioner was nto a person aggrieved as the act of the Municipality did nto in any way injure petitioner's property, franchise or personal rights. It was observed : "THEpolicy of the law is that in such cases a representive suit should be brought in which the interest of all should be finally and completely adjudicated upon. But to this ordinary rule there are certain exceptions, and the most important exception is that when you have members of a corporation who are all equally interested in the corporation carrying out its activities according to its funds then every member of the corporation has the right to file a suit to prevent the corporation from so acting. The same principle applies to a rate-payer. Every rate-payer has the right to prevent the public body to which he pays the rates from acting contrary to law or contrary to its own charter............"

(11) It is nto necessary to multiply the decisions on the subject as they do nto carry the proposition put forth by Mr. Lekhi any further. I will abstain from expressing any opinion on the right of a stranger in this behalf when he asks for a writ of prohibition as some distinction has been made in English law between a writ of prohibition and writ of mandamus and/or certiorari. Even in case of a writ of prohibition, matters suffering from patent lack of jurisdiction have been accorded a different treatment from matters where there is no patent lack of jurisdiction so far as English decisions go. I also do nto propose to discuss the niceties observed in English law and their impact on the powers conferred by Article 226. These matters were nto discussed before us and Mr. Lekhi confined his arguments to only one aspect that in all cases where public funds are misapplied and where laws are disobeyed a rate-payer can maintain a petition. I propose to confine my decision only to the facts of this case in which a writ, order or direction asked for is to quash the order of the Lieutenant Governor passed under section 487 of the Municipal Corporation Act. In such a case the principle applicable, in my opinion, should be that normally only a person aggrieved, i.e. a person whose legal right have been infringed or who has other substantial interest in impugning the order, can file a petition. May be, though I express no final opinion, that in some exceptional circumstances and exceptional cases the Court is competent to interfere even at the instance of a stranger but I can see no ground so far as this case is concerned to interfere at the instance of an utter stranger particularly when admittedly no public funds are being applied. In case of this type the petitioner must show that he has a peculiar grievance of his own. Peculiar grievance must, however, be given a wide meaning. For instance, a person having a right to use a road may be able to challenge an order stopping the same or a rate-payer may be competent to object to such decision by the authorities as increase his fiscal liability. To that extent the meaning of the expression 'person aggrieved' is for the purposes of Article 226 wider than in most other branches of law. Still where the interest of a petitioner is extremely insignificant or too remote he may nto be termed as a person aggrieved. To sum up the position appears to be that : (1)the petitioner must have a peculiar grievance of his own and must in that sense be a person aggrieved; (2) the expression "person aggrieved" has for the purposes of Article 226 a wide connotation and in given case his general interest with the other members of the community may entitle him to say "I am a rate-payer, the funds of the rate-payers are being misapplied and a stop should be put to that"; and (3) if his interest is too remote or extremely insignificant he cannto maintain a petition. Bombay judgment is, in the light of the discussion, distinguishable.

(12) In the facts of the present case, the petitioner cannto have any grievance at all. Under the impugned order no fiscal burdens have been imposed on the local body and in the circumstances I am nto prepared to entertain the petition at the instance of an utter stranger like the petitioner.

(13) The learned counsel for the petitioner strongly depended on Article 15. I do nto see how Article 15 helps the petitioner for (1) the areas cannto be termed as a place of public resort, and (2) no case of disability on the grounds "only" of religion has been made out.

M.R.A. Ansari, J

(14) I agree. Without pronouncing on other questions, therefore, I will dismiss these petitions on the preliminary objection with no order as to costs.