Beadonpura Durga Puja ... vs Mcd & Ors.
2009 Latest Caselaw 1064 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

                    + W.P.(C) 8140/2007 & CM No.15380/2007


                                            Date of decision : 31.03.2009

IN THE MATTER OF :
BEADONPURA DURGA PUJA SAMITI(REGD.)                 ..... Petitioner
                       Through: Mr. Anjan Chakraborty and
                                 Mr.Rahul Malhotra, Advocates


                    versus


MCD & ORS..                                             ..... Respondents
                                      Through:    Mr. Ajay Arora and
                                                  Mr.Kapil Dutta, Advocates



CORAM

* HON'BLE MS.JUSTICE HIMA KOHLI

     1. Whether Reporters of Local papers may be allowed to see the
        Judgment? No

     2. To be referred to the Reporter or not?          No

     3. Whether the judgment should be reported in the Digest?     No

HIMA KOHLI, J. (ORAL)

1. The present writ petition is filed by the petitioner praying inter

alia for directions to the respondent/MCD not to demolish the structure

made over the Bedi at the Durga Puja Park.

2. The contention of the petitioner/Samiti is that the Samiti has

been celebrating Durga Puja, Kali Puja and Lakshmi Puja in a park situated

at Desh Bandhu Gupta Road between the Christian Colony and the

Regharpura Colony from lanes No. 1 to 4. It is stated that on 22.09.2000,

the MCD passed a resolution resolving to name the aforesaid park as the

"Durga Puja Park". It is averred that a Bedi with super structure was

constructed in the area and provided to the Samiti and a statue of Goddess

Kali was installed there. It is urged that the super structure has been

constructed around the Bedi as a safety measure so that the statue of the

Goddess is not accessible to thieves and to maintain cleanliness.

3. Counsel for the petitioner submits that the Samiti celebrates

Durga Puja annually after taking appropriate permission in that regard from

the office of the Dy. Commissioner of Police of the area. However, on

30.10.2007, certain employees of the respondent No. 3 came to the park to

demolish the structure, thus, compelling the petitioner to approach the Court

by way of the present writ petition.

4. Counsel for the respondent/MCD submits that the area in

question is a park and the designated and the lawful use of the site has been

that of a park. However, the petitioner, under the garb of holding an

annual Durga Puja, has raised unauthorized construction by covering the

Chhatri, which was constructed from the funds of a Member of Parliament

and giving the same the shape of a temple. It is further stated that a

complaint was lodged by the MCD with the police authorities on 3.11.2007

wherein it was categorically stated that a shelter/Chhatri with all four sides

open and a Chabutra under it was constructed by the MCD long back and

that certain unscrupulous persons belonging to the petitioner/Samiti covered

all the four sides of the shelter by constructing non-concrete iron glazing and

fiber sheets to convert it into an enclosure and that they have installed a

board in the name of "Beadonpura Durga Puja Samiti" there. The

respondent complained to the local police that the aforesaid act of occupying

a public property was illegal and amounted to trespassing, being an

encroachment on the government land. Hence, an FIR was sought to be got

registered.

5. Counsel for the respondent submits that the park in question has

been constructed by covering a part of a drain/nullah and the same has

been developed by laying of a lintel, which may not be in a position to bear

the load of the unauthorized construction in the form of a temple, illegally

occupied by the petitioner.

6. Counsel for the petitioner states at the outset that the Board of

Beadonpura Duga Puja Samiti, as indicated in the photograph enclosed as

Annexure-P2 to the writ petition, shall be removed by the petitioner.

However, he urges that as the Chhatris were enclosed by the

petitioner/Samiti to protect the Deity installed therein, the respondent is

liable to be restrained from demolishing the same.

7. There are no documents placed on record by the petitioner to

establish that any prior permission was sought by the petitioner/Samiti to

either install the Deity at the aforesaid site, or to enclose the aforesaid

Chabutra constructed by the MCD, in the manner in which it has been done

by the petitioner. It is not denied by the petitioner that the Chabutra was in

existence prior thereto. This is borne out by the photographs filed as

Annexure P2 (colly) to the writ petition. It is stated on behalf of the

petitioner that it be permitted to approach the respondent/MCD with a

representation for regularization of the non-concrete structure which

request, counsel for the respondent states, cannot be acceded to as the park

in question is a public park and any such act on the part of the petitioner

amounts to seeking regularization of encroachment, which is not permissible

in law.

8. The contention of the petitioner that a Deity has been installed in

the aforesaid Chabutra by the petitioner/Samiti much earlier, in the year

1970 is demolished by the averments made in para 9 of the writ petition.

In para 9, the petitioner has categorically stated that in the year 2001, the

respondent/MCD provided some area in the park to the petitioner/Samiti,

whereafter a Bedi with super structure was constructed. The petitioner has

miserably failed to bring to the notice of the Court any orders issued by the

MCD allocating any area in the public park exclusively to the petitioner for

building a temple.

9. Reliance is placed by the petitioner on a Resolution of the MCD

dated 22.9.2000. The said Resolution was limited to the agenda placed

before the Committee constituted by the Corporation for naming of the park

in question as Durga Puja Park. The Committee resolved to christen the said

park as Durga Puja Park. However, the said Resolution did not provide any

exclusive area in the park to the petitioner/Samiti for building a temple. The

Resolution dated 3.12.2001 does not create any vested right in the

petitioner/Samiti to occupy the park by enclosing the existing chatris under

the garb of protecting the deities installed therein. A perusal of Annexure-B

to the counter affidavit shows that even in the records of the MCD pertaining

to Karol Bagh ward, the aforesaid area is shown at S.No.34, as an ordinary

park.

10. That the petitioner celebrates Puja in the said park every year

after taking permission from the DCP, cannot fortify the claim of the

petitioner to enclose the chatris on all four sides and convert the Chabutra

into an enclosure and that too with the board of the petitioner/Samiti

displayed outside, as if the same is owned by it.

11. In these circumstances, the relief sought by the petitioner for

directing the respondent not to demolish the structure made over the Bedi

cannot be granted.

12. The writ petition is dismissed alongwith the pending application

being devoid of merits. Needless to state that the aforesaid dismissal shall

not preclude the petitioner/Samiti from approaching the Delhi Police for

grant of permission to celebrate Durga Puja, Kali Puja and Lakshmi Puja in

the Durga Puja Park, on an annual basis, subject to the terms and conditions

that may be imposed by the police authorities.

HIMA KOHLI,J MARCH 31, 2009 rkb