Aravali Resident Welfare ... vs Delhi Development Authority & ...
2009 Latest Caselaw 144 Del

*           THE HIGH COURT OF DELHI AT NEW DELHI

+                L.P.A. No. 535-43/2006

                                Date of Decision :19th January, 2009

Aravali Resident Welfare Association & Ors ......Appellants
           Through : Mr. J.C.Seth, Advocate
                      Mr. A.K.Nigam, Mediator


                                Versus

Delhi Development Authority & Ors         ......Respondents
          Through : Mr. Rajiv Bansal & Mr. Rajan Tyagi,
                    Advocates for DDA.
                    Mr. O.P.Saxena, Advocate for MCD.
                    Ms. Noorun Nahar Firdausi, Advocate
                    for respondents No.4 and 5.
                    Mr. N.Waziri, Advocate & Mr. Shoaib Haider,
                    Advocate for Delhi Wakf Board.


CORAM :

HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

1.    Whether Reporters of local papers may be
      allowed to see the judgment?

2.    To be referred to the Reporter or not ?

3.    Whether the judgment should be reported
      in the Digest ?


SANJAY KISHAN KAUL, J. (ORAL)

1. The DDA developed the Aravali Apartments Complex,

Alaknanda, New Delhi comprising of a large number of SFS Flats. The

possession to the successful allottees is stated to have been given

some time in the year 1983. The appellants before us are the

Residents Welfare Association and various allottees.

2. There appears to have been some problem from the

inception itself about the presence of a mosque within the boundary of

the Apartment complex. Endeavors to find a solution to the same did

not succeed. It is the case of the appellants that their right of

enjoyment of the flats is disturbed and affected by the congregation

that assembles not only in the mosque but spills over into the adjacent

area including lanes and by-lanes.

3. The appellants claim that the structure of the mosque itself

is an unauthorized construction and encroachment on public land. On

the other hand, the Delhi Wakf Board has taken the stand that the

Masjid has been in existence for over 100 years and forms part of a

notification dated 10.4.1980 where this Masjid is enlisted at serial

No.11. It is further pleaded that since this place of worship existed

prior to 15.8.1947, the Places of Worship (Special Provisions) Act, 1991

itself protects the structure as there is a bar of conversion of any such

place of worship in view of the provisions of Section 3 and 4 of that Act.

The Masjid is thus claimed to exist on Khasra No. 281/1-M measuring 3

biswas of Mauza Tughlaqabad, New Delhi.

4. One entity Muslim Janta Anjuman, claims to be running the

mosque, though the status of that entity is disputed by the Wakf Board.

In 1986, towards an endeavour for amicable solution, a suggestion had

emanated that the mosque be preserved as a structure without the

Namazis offering prayers and separate land be made available by the

DDA, which was then the controlling authority of that land, measuring

500 Sq. yards elsewhere for purposes of offering the Namaz. This

arrangement however was not concluded nor was there a formal

acceptance to the offer of the DDA. The land where this alternate area

was to be made available now vests with the Slum Wing of MCD being

part of JJ Department and learned counsel for the MCD states that

much water has flown since the offer was originally made by the DDA

and there are already alternate plans in existence for utilization of the

area inclusive of the 500 sq. yards. The land is thus stated to be not

available.

5. The previous orders passed by this court shows that at

some stage, it was thought that a settlement may be possible and thus

Mr. Arvind Nigam, Advocate was appointed as Mediator. The Mediator

has submitted reports. The Anjuman apparently wanted the original

arrangement to be implemented of alternate space but the Wakf Board

which has stepped into the picture was of the view that the Anjuman

has no legal standing and that the Wakf Board is not willing to shift the

place for offering Namaz, though it would obviously welcome any

additional land. Learned counsel submit that the Wakf Board is

constrained by the provisions of Section 51 of the Wakf Act, 1995.

6. The result of the aforesaid is that there is no amicable

solution possible inspite of the best efforts of the Mediator.

7. We find a number of factual disputes arising in the present

writ petition which certainly cannot be determined in these

proceedings as evidence would be required to be led to come to any

conclusion. These facts include whether the Masjid existed at the site

prior to 15.8.1947 or at what stage such a Masjid came up. This is so

as apparently when the land was notified, the notification does not

mention presence of such Masjid by including it in the award. As

noticed above, counsel for the Wakf Board relies upon the notification

of 10.4.1980 and submits that he has other records to establish the

claim of the Wakf Board.

8. In view of the appellants asserting that as per Revenue

records there is no such mosque and the Wakf Board taking the

contrary position both sides have to be given an opportunity to lead

evidence in that behalf which can only be done in a Civil Suit. Not only

that there is a controversy about the status of Anjuman and its capacity

to have proposed any settlement. Once again, this is a matter which

would require evidence to be led. Parties are at liberty to approach Civil

Court or any other authority for redressal of their grievances in that

behalf.

9. We have to keep in mind as to what are the directions

which the appellants prayed for in the writ petition, the impugned order

passed in that behalf and as to what directions are now required to be

passed keeping in mind the aforesaid constraints.

10. The appellants had prayed for removal/reallocation of the

unauthorized building being used as a mosque situated within Aravali

Apartments Complex, Alaknanda, New Delhi. This in turn entails the

determination of the aforesaid controversy and such a direction thus

cannot be issued in these writ proceedings.

11. In the impugned order, the learned Single Judge has non-

suited the appellants on the ground that the mosque has been

functioning in the area for some time and that options were granted to

the petitioners to get alternate accommodation which was declined by

them. Firstly, we are of the view that there cannot be any compulsion

on the appellants and other allottees to shift to an alternate

accommodation. Secondly, it is pleaded by learned counsel for the

appellants that such an offer was made only to five allottees and they

too were not made available any alternate flats and the offer was in

fact withdrawn.

12. We however cannot ignore the fact that mosque exists on a

particular area. The Namazis have a right to offer their Namaz at the

mosque subject to the determination of the ultimate question in Civil

proceedings. Learned counsel for the Wakf Board submits that they will

approach the concerned authorities for making arrangements for a

large number of Namazis to be accommodated within the precincts of

the Masjid by carrying out suitable constructions in accordance with

law. This is of course for the Wakf Board to do.

13. The rights of the Namazis to offer prayers at the mosque

however cannot imply a right to spill over into lanes and by-lanes and

to occupy the area beyond the precincts of the mosque. The prayers

must thus be offered within the boundary of the mosque. This would of

course entail possibly restricting the number of Namazis into the

mosque because the area itself is limited. It is for the Wakf Board or

the concerned authorities to work out as to how best the area can be

utilized for purpose of permitting a larger number of Namazis to offer

prayers but the same should be restricted to the area of the mosque.

14. Learned counsel for the appellants submits that periodically

police authorities have to be called. The Commissioner of police is

impleaded as respondent No.3 and is represented by a counsel. It is

the bounden duty of the police authority to ensure that the law of land

is obeyed and law and order be maintained. It thus must be ensured

that the areas beyond the boundary of the Masjid are kept clear for the

allottees and residents of the area and are not used for any other

purpose than easementary rights of passage.

15. The impugned order is set aside and stands substituted

with the directions passed by us today.

16. The appeal is accordingly allowed leaving the parties to

bear their own costs.

CM No.4850/2006 (Stay) & CM No. 4851/2006 (Order 41 Rule 27)

17. In view of the disposal of the appeal, no further directions

are called for on these applications.

18. Applications stand disposed of.

19. Dasti to learned counsel for the parties.

SANJAY KISHAN KAUL, J.

SUDERSHAN KUMAR MISRA, J.

January 19, 2009 ib