Salmani Zamat Masjid & ... vs Delhi Development Authority
2001 Latest Caselaw 1813 Del

JUDGMENT

Manmohan Sarin, J.

1. Rule.

2. With the consent of the parties, writ petition is taken up for disposal.

3. The petitioners Salmani Zamat Masjid & Educational Charitable Trust through its trustee Mohd. Abdul Hakeem has filed the present writ petition seeking a writ to restrain the respondents from demolishing the structure claimed to be a mosque situated at Village Budhela, New Delhi-110018. Further direction is sought for permitting the petitioners and other religious minded persons belonging to the Muslim Community to Community to enter into the said mosque and perform Namaz and other religious rights.

4. The petitioner in support of its case annexed a trust deed as well as filed photographs on record, where persons numbering around 30 are shown to be praying and performing Namaz.

5. The writ petition had come up on 3.7.1998, when the court directed issuance of notice. On an application bearing CM No. 6997/98, directions were also given for Assistant Engineer of DDA to carry out an inspection of the site and report to the court, the exact state of existing construction, in particular whether the construction was old or a new one? Respondent DDA has also filed its counter affidavit, wherein it is claimed that the land in question stood acquired vide award No. 2183 dated 9.8.1969. It is stated that possession of the land in question i.e. Khasra No. 28/6/2, Village Budhela was also taken in the year 1969. It is averred in the counter affidavit that the petitioners and other encroachers erected a structure of bricks with a tin shed on top in about 400 sq. yards with a view to claim possession of the same. This structure is stated to have been demolished on 1.7.1998 itself. It is also averred that one Bhaktawar, who happens to be one of the encroachers, had filed a suit for declaration and injunction. Said suit was dismissed and an appeal bearing MCA No. 109/97 was preferred. This appeal was also dismissed. It is only also after the dismissal of the suit and appeal that the present writ petition was filed to save the unauthorised structure in the garb of a mosque.

6. Learned counsel for the partitioner Mr. Rajat Aneja urged before me that mosque had been in existence for over 200 years, where members of the muslim minority community duly carried out their prayers. He relied on Article 25 of the Constitution of India submitted that this was an infringement of the rights guaranteed for freedom of practicing and propagating their religion. Certain photographs have also been produced, where few persons are shown performing Namaz.

7. I am not impressed with the submissions made by the learned counsel for the petitioner. It is not disputed before me that the land in question stood acquired in 1969 and possession itself is claimed to have been taken in the said year. The land had been handed over for development to the DDA after notification under Section 22 of the Delhi Development Act had been issued. Admittedly there has been no challenge to the acquisition. It was put to the counsel for the petitioner, whether there was any evidence regarding the existence of the mosque. Learned counsel candidly admits that no other evidence except the photographs on record had been produced or was available. No evidence in the form of water, electricity bills property tax or revenue records showing the existence of a mosque has bee produced. The perusal of the photographs shows the boundary walls being raised with bricks without even the same having been plastered. The impression is of a make shift structure..... In any case this structure also was demolished by the DDA on 1.7.1998. Inspection report also supports the above position.

8. Learned counsel next submitted that there was a grave yard also on the site in question. DDA in its affidavit has stated that there is only one grave, which is also located outside the site and is located in the district park. The grave has not been disturbed. In any case, the said grave is outside the area of 400 sq. yards. Inspection report filed on record also supports the case set out by DDA.

9. Petitioner has miserably failed to even prima facie show the existence or use of the structure as a mosque for 200 years. It is a case of encroachment of public land. Any attempt to justify such encroachment on the ground of religion or alleged discrimination against a minority community deserves to be condemned. Petition is dismissed with costs of Rs. 5,000/- to be paid to the Prima Ministers's Relief Funs.