Sidh Shri Baba Balaknath Mandir, ... vs Delhi Development Authority
2001 Latest Caselaw 1967 Del

JUDGMENT

Manmohan Sarin, J.

(1) By this order, I would be disposing of C.M.No.12395/2001, an application moved by the petitioner for directions to allow the petitioner to raise a boundary wall on plot No. R-6, Hudson Line, Kingsway Camp, Delhi, allotted to it for the purpose of construction of a temple. The petitioner also seeks a direction to restrain the neighbour Shri Guru Teg Bahadur Education & Welfare Society (Regd.), and Gurudawara Shri Guru Singh Sabha from causing any obstruction. Directions are also sought to the S.H.O. Police Station Mukerjee Nagar to render assistance for ensuring peaceful construction of the boundary wall.

(2) This case has a checkered history and the essential facts and proceedings relevant for the purposes of deciding the present application are being noticed.

(3) Petitioner has filed this writ petition seeking a writ of mandamus directing Delhi Development Authority (DDA) to allow construction of the temple at the site in question, namely, R-6 Hudson Lines. The petitioner had also sought quashing of a letter dated 18.12.1995, by which DDA in view of the possible law and order problem, decided to cancel the allotment and to allot an alternate site. It may be noted that pursuant to the order passed by this Court on 3.11.2001, an affidavit was filed by the DDA, withdrawing the letter dated 18.12.1995. Along with the writ petition, the petitioner had produced the letter of allotment of plot No. R-6, Hudson Lines, dated 19.1.1994, appearing at page 20 of the paper book, for construction of a temple. The payment for the same was also made on 22.9.1995. As per the documents produced on record, the possession of the plot was also handed over on 20.11.1995. A 'No Objection' certificate for getting the sanction of building plans was also issued on 21.11.1995. Counsel for the petitioner Mr. R.K. Saini urges that the petitioners are thus entitled to protect the plot allotted to them by raising a boundary wall. He submits that the applicants in C.M.No.12918/2001 and Gurudwara Shri Singh Sabha, be not heard as they are themselves encroachers and in unauthorized occupation of public land.

(4) Counter affidavit filed by the DDA in this case records that there was an encroachment by the Gurudwara and School up to the extent of 1 to 1/2 ft. inside the site in question. It avers that, therefore, it was decided that possession be handed over leaving the encroached space. It was averred that it appeared from the representation made, that there may be law and order problem. Hence the question of allotment of the alternate site to the petitioner Sidh Shri Baba Balaknath Mandir was considered and intimated to the petitioner. This Court vide order dated 3.11.2001, noted that instead of taking action against the encroachers, the State or any other public authority could not shirk from its responsibility of removing the encroachment rather than seeking to cancel the allotment of the petitioner Sidh Shri Baba Balaknath Mandir. The respondent DDA there upon withdrew the letter of 18.12.1995.

(5) A petition by Hudson Line Residents Association bearing No. CWP 1319/2001, was filed challenging the allotment of the plot R-6 to petitioner contending that the site in question could not have been allotted to the petitioner society as it was meant for nursery school. Further a restraint was sought on DDA from handing over possession of the site in question to the petitioner. A Division Bench of this Court on 17.2.2001, passed an ex parte order directing that in the meantime possession of the site be not handed over to the petitioner Shri Sidh Baba Balak Nath, respondent No. 2 in CWP No. 1319/2001. The petitioners in CWP No. 422/1996 i.e. Sidh Shri Baba Balak Nath Mandir claims to have moved another application C.M.No.2834/2001, setting out the factual position and seeking recalling of the order dated 16.3.2001, noticing that two writ petitions apart from the civil writ petition No.1319/2001 were already pending before this Bench concerning the same plot, which was the subject matter of CWP No. 1319/2001, directed the matter to be listed before the Single Bench hearing CWP No.422/1996. It was further directed that it would be for the Single Bench to maintain, vary or modify the interim order passed on February 27, 2001. It was also clarified that the interim order passed by the Division Bench would not come in the way of the DDA from removing the encroachment, as ordered by this Bench.

(6) Another writ petition bearing CWP No.1322/2001, was filed by Shri Guru Teg Bahadur Education & Welfare Society and Gurudwara Shri Guru Singh Sabha seeking the allotment in its favor for a nursery school and questioning the allotment to Sidh Shri Baba Balak Nath Mandir. This petition was entertained only on the petitioner's undertaking that they would themselves relocate the 'Nishan Sahib', the swings and two gates, which were encroachments on plot No. R-6 Hudson Lines, allotted to the petitioner. On such an undertaking being given, notice to show cause in the petition was issued. This Bench while disposing of C.M. No. 2335/2001, seeking status quo by the Gurudwara Shri Guru Singh Sabha noted that the said application does not survive in view of the undertaking given to remove the encroachments. moreover, possession of the present site R-6 apart from the area to cleared and vacated by Shri Gurudwara Singh Sabha, had already been handed over to respondent No. 3. i.e the petitioner Sidh Shri Baba Balaknath Temple, in the present petition.

(7) To sum up the position, which emerges is that the petitioner has been allotted plot No. R-6, Hudson Line, for construction of a temple. The encroachment portion of 1 1/2 ft. where swings and gates had been installed also stands removed. As per the record of DDA, the possession was handed over In November, 1995 on payment, being made. The DDA's auction in deciding to allot an alternate site i.e. other than the existing plot R-6 to the petitioner stands withdrawn. There is a challenge by the petitioners in CWP Nos. 1319/2001 and 1322/2001, to the allotment to the petitioner Sidh Shri Baba Balaknath Temple of the site for construction of a temple on the ground that plot is meant for nursery school in the layout plan and other religious sites are available. Pleadings in the said petitions are to be completed. The merits of the contentions sought to be raised by petitioners in CWP No. 1319/2001 & 1322/2001 are yet to be established.

(8) It is in the aforesaid background, that the prayer of the petitioner Sidh Shri Baba Balaknath Temple for permission and direction to construct the boundary wall is to be considered. In the present writ petition, wherein the present application has been made, DDA alone is a party. It is only recently that an application has been moved bearing No. 12918 of 2001 by Shri Guru Teg Bahadur Education & Welfare Society (Regd.) for being imp leaded as a party. Another application C.M.No.12919/2001, has been moved by the same applicant for recalling and modification of the orders dated 3.11.2001 and 30.11.2001. The applicant Shri Guru Teg Bahadur Education & Welfare Society (Regd.) through Mr. V.K. Makhija, Sr. Advocate and Mr. Amit Bansal, Advocate and Hudson Line Residents Association through Mr. Ravinder Sethi, Sr. Advocate with Mr. Sumit Bansal are not parties in the present writ petition, but to subserve the ends of justice, I have also given an opportunity to them to address me on this issue.

(9) Learned counsel Mr. Ravinder Sethi submitted that the revised layout plans of DDA show that the plot in question is not a religious site and could not have been allotted to Sidh Shri Baba Balak Nath Temple. He further submitted that the DDA is in collusion with the petitioner Sidh Shri Baba Balaknath Temple in the case and collusive documentation regarding possession had been done. He vehemently urged that the petitioner deliberately did not implead Shri Guru Teg Bahadur Education & Welfare Society (Regd.) as a party to the petition. He submits that since other religious sites were available and the petitioner, therefore, should not be permitted to change the status quo till the decision of the writ petitions, where the allotment to the petitioner is in challenge. He also relied on the judgments in Dr. G.N. Khajuria and Ors. v. Delhi Development Authority and Ors. 63(1996) Delhi Law Times 775 & M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu and Ors. JT 1999 (5) SC 42 in support of his contention that in case of allotment of a plot for a purpose other than that given in the layout plan, no construction should be permitted.

Mr. Vijay Makhija appearing for Shri Guru Teg Bahadur Education and Welfare Society (Regd.), while adopting the arguments of Mr. Ravinder Sethi, submitted that the land had wrongly been allotted to Sidh Shri Baba Balak Nath Temple, while the applicants were entitled for its allotment for running a nursery school. He disputed physical possession having been given. He also relies on a letter dated 25.1.2001, written by the Director (Lands) wherein the subject of the said communication is described as 'allotment/regularisation of land meant for Nursery school in the layout plan of re-development scheme of Kingsway Camp, Delhi at Hudson Line which has plot measuring 402 sq. metrs wrongly/illegally allotted to Sidh Sabha Balak Nath Mandir, to assail the allotment.

This plea is completely misconceived as it appears that the "subject" quoted is simply reproduced possibly from a representation made by the aggrieved party. The contents of the letter which are material, are simply to the effect that there was a dispute pending before the Court and as soon as a decision is arrived at, the case would be processed. It does not advance the applicants case.

In substance, the argument of learned counsels Mr. Ravinder Sethi and Mr. V.K. Makhija is that the land has been wrongly allotted to the petitioner as it is not a religious site as per layout Plan. Secondly, physical possession being with the petitioner Sidh Shri Baba Balaknath Temple, is disputed. Lastly in view of these disputes, pending decision in the writ petition, status quo ought not to be changed.

Learned counsel for DDA maintains that the allotment of the site to the petitioners is in accordance with the revised layout plans and is fully justifiable. The receipt of the land premium as well as handing over of possession after demarcation is confirmed. The pleading in the other writ petitions are in the process of completion.

I have considered the rival submissions and have perused the documents filed on record as well as the affidavits of the DDA and the records produced. I am of the view that at this interim stage, as per the DDA records, allotment to the petitioner of the demised land is subsisting, payment has been made, possession handed over, the encroachment in the form of 'Nishan Sahib' swings and the gates removed pursuant to the undertaking give. Considering the checkered history and background of litigation as notice, in the instant case where at one stage but for the interference by the court, even the respondent-DDA had decided for alternate allotment to the petitioner rather than removing the encroachment, the desire and apprehensions of the petitioners to protect the allotted plot from any encroachment is fully justified. The authorities cited Dr. G.N. Khajuria and Ors. v. Delhi Development Authority and Ors. and M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu and Ors. (supra) will not have application in facts of the present case, since the relief being sought by the petitioners is only for purposes of protecting the property from encroachment, the question of user and construction of the plot for a purpose allegedly contrary to the layout, does not arise at this stage. Besides simply because of the pendency of two writ petitions challenging/assailing the allotment, petitioner cannot be deprived of its right to protect the property allotted to it. Besides without adverting even to the merits of the writ petitions No. CWP 1319/2001 and 1322/2001, it may be noted, that learned counsel for the petitioner has submitted that the petitioner Sidh Shri Baba Balaknath Mandir will not claim an special equities for the cost of construction of the wall in case the decision on the question of allotment ultimately goes against them.

(10) In view of the foregoing, the application C.M. No. 12395/2001 deserves to be allowed. The petitioner Sidh Shri Baba Balaknath Mandir is permitted to raise a boundary wall to protect the plot allotted to it. DDA or the applicants in C.M. 12918/2001 Shri Guru Teg Bahadur Education & Welfare Society (Regd.) and Hudson Line Residents Association in CWP No. 1319/2001 shall not cause any obstruction in the raising of the boundary wall. The SHO of the concerned police station is directed to maintain law and order and to ensure that there is no obstruction caused in the construction of the boundary wall. The application is allowed in the above terms.