Anjuman-E-Haider (Regd.) vs Chairman Ndmc, Archna Arora And ...
2013 Latest Caselaw 1319 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                  Judgment reserved on   : 12.03.2013
                                   Judgment pronounced on : 18.03.2013

+      CONT. CAS.(C) No.820/2012
       ANJUMAN-E-HAIDER (REGD.)                     ..... Petitioner
                      Through: Ms. Tasneem Ahmadi along with
                                 Mr. N.R. Thakur, Advs.

                     VERSUS


       CHAIRMAN NDMC, ARCHNA ARORA AND ORS......
                                          Respondents

                            Through:      Mr. Rohan Tahwani, Adv. for
                                          respondent.
                                          Mr. Mehmood Pracha along with
                                          Ms. Sneha Singh, Advs. for Waqf
                                          Board.
                                          Ms. Madhu Tewatia, Adv. for
                                          NDMC.
                                          Mr. Ishwar Singh, SHO, Lodhi
                                          Road; SI Sanjiv Mahana, P.S.
                                          Lodhi Road.
                                          Mr. Pankaj Batra, Adv. for Delhi
                                          Police.
                                          Mr. Rajiv Bansal along with Mr.
                                          Devvrat Singh Raghav and Mr.
                                          Rahul Bhandari, Advs. for DDA.

+      W.P.(C) No.646/2012

       KARAMVIR SINGH NAGAR AND ANR.             ..... Petitioners
                    Through: Mr. Vishesh Issar, Adv.

                     VERSUS




Cont. Cas.(C) No.820/2012 & W.P.(C) No.646/2012               Page 1 of 17
        DELHI DEVELOPMENT AUTHORITY AND ORS......
                                                 Respondents
                    Through: Ms. Tasneem Ahmedi, Adv. for R-
                             6.
                             Mr. Rohan Tahwani, Adv. for
                             respondent.
                             Mr. Mehmood Pracha along with
                             Ms. Sneha Singh, Advs. for Waqf
                             Board.
                             Ms. Madhu Tewatia, Adv. for
                             NDMC.
                             Mr. Ishwar Singh, SHO, Lodhi
                             Road; SI Sanjiv Mahana, P.S.
                             Lodhi Road.
                             Mr. Pankaj Batra, Adv. for Delhi
                             Police.
                             Mr. Rajiv Bansal along with Mr.
                             Devvrat Singh Raghav and Mr.
                             Rahul Bhandari, Advs. for DDA.


       CORAM:
       HON'BLE THE CHIEF JUSTICE
       HON'BLE MR. JUSTICE V.K. JAIN


V.K. JAIN, J.

CM No.3241/2013 in Cont. Cas.(C) No.820/2012 CM No.2254/2013 in W.P.(C) No.646/2012

1. WP(C) No.4907/2005 was filed inter alia seeking directions for

demarcation of the boundaries of the properties, described in paras 6 and

7 of the petition, which were stated to be under the management and

administration of the petitioner. The said writ petition was disposed of on

09.11.2005 with a direction to Government of NCT of Delhi to require its

Revenue Assistant to demarcate the boundary of the said properties, i.e.

Chhote Karbala (Khasra No. 23), Kanati Masjid (Khasra No. 29), Dargah

Shah-E-Mardan (Khasra No. 39/1&39) (hereinafter referred to as

"Dargah") and Naqqar Khana (Khasra No.39). The demarcation was to be

completed within six months from the date of the order. The respondent

No.1 in the writ petition was directed to construct a boundary wall

wherever needed so that the Wakf land could be protected.

2. CM No. 12048/2006 was filed by NDMC in WP(C) No. 4907/2005

seeking certain clarifications of the directions issued vide order dated

09.11.2005. While dealing with the said application vide order dated

03.04.2007, the learned Single Judge noted that in respect of the vacant

land around Dargah measured about 09 bighas, Dargah was shown as the

owner of Khasra No. 39 and the same was built up and under possession

of Dargah. As regards Naqqar Khana, which was the fourth property, the

learned Single Judged noted that as per Demarcation Report, DDA had

claimed that the said portion of the land to be their site No. 8 and for that

reasons, the said portion was not demarcated in the report dated

08.05.2006. It was further observed that another demarcation exercise

was carried out on 13.06.2006 in respect of site No. 8 of DDA, in the

presence of DDA officials and the demarcation of site No. 8 was found to

be correct, as per map of the Survey and Settlement Branch II of DDA.

Therefore, the demarcation of DDA site No. 8 had taken place without

difficulty. It was also noted by the learned Single Judge that when

NDMC commenced construction of boundary wall in regard to „Dargah‟,

it was found that one portion of DDA site No. 4 abutted that portion. The

learned Single Judge was of the view that since Naqqar Khana was not a

Wakf property as per demarcation report, it was not possible to direct

NDMC to erect a boundary wall in respect of that property.

The learned Single Judge noted that as per Demarcation Report, the

vacant land surrounding „Dargah‟ was also measured and indicated in the

rough sketch enclosed to the report. He also noted the contention of

DDA counsel that the right hand top portion of site No. 4 of DDA slightly

overlapped the left hand corner of „Dargah‟, and to the extent of such

overlapping, DDA had an objection to the boundary wall being

constructed, because some portions of DDA land were falling within the

land of „Dargah‟. The learned Single Judge also noted that during two

exercise of demarcation, DDA had not raised the plea of the aforesaid

overlapping.

A controversy was raised before the learned Single Judge with

respect to the vacant land surrounding „Dargah‟. An internal note from

the office of SDM, Defence Colony was produced before the learned

Single Judge stating therein that the vacant land surrounding „Dargah‟

was also measured in compliance of the order of the Court though

Government was shown owner of the said land in Revenue/Nazul record.

A copy of Jamabandi was also enclosed to the said note.

3. The following directions were then issued by the learned Single

Judge on 03.04.2007:-

"(i) As regards two of the wakf properties i.e. the Chhote Karbala and the Kanati Masjid, the NDMC should immediately proceed to construct the boundary wall within a definite time frame and the exercise should be completed by 30.6.2007. The question of reimbursement of the expenses incurred by NDMC in constructing the boundary wall, will be decided at a later date. If the NDMC requires any police protection for performing this exercise, it should immediately write to the Commissioner of Police enclosing copies of the orders dated 9.11.2005 and today‟s order. If such request is made, the Commissioner of Police will provide adequate police protection to ensure the completion of the exercise

of constructing the boundary wall in relation to the abovementioned two properties.

(ii) The NDMC will now file an affidavit in this Court within two weeks indicating the time frame for completion of the exercise as directed in (i) above on or before 30.6.2007, and also the approximate estimated cost which will be incurred in constructing the boundary wall in terms of para (i) above.

(iii) As regards the controversy regarding the vacant land surrounding the Dargah Shah-e- Mardan, an additional affidavit will now be filed by the SDM, Defence Colony within four weeks explaining inter alia as to why the note produced in the Court for the first time today by counsel for the GNCTD was withheld so far. The affidavit and copies of the extracts from the Jamabandi and other records be also annexed to the affidavit. The counsel for the Petitioner and the Delhi Wakf Board are permitted to file replies to this additional affidavit within two weeks thereafter."

4. A number of CMs, thereafter, came to be filed in WP(C) No.

4907/2005. Taking note of the orders dated 09.11.2005 and 03.04.2007,

the matter was closed by the learned Single Judge vide order dated

11.01.2012. WP(C) No. 646/2012 was then filed as a Public Interest

Litigation, alleging grabbing of open spaces/parks inside and around B.K.

Dutt colony. This is also the case of the petitioners in WP(C) No.

646/2012 that demarcation was carried out behind the back of the

residents of the colony and it was falsely held out during demarcation that

the said lands were of religious significance to a particular community.

They inter alia sought direction to the respondents to evict all

encroachers from DDA/L&DO/Government owned spaces/parks/unused

land in the area of B.K. Dutt Colony and destruction of illegal sign

boards, etc. on the aforesaid land.

5. It would thus be seen that according to the petitioners in WP(C)

No. 4907/2005, the lands in question were of religious significance to a

particular community and were under the management and administration

of the petitioners in the said petition, whereas the case of the petitioners

in WP(C) No. 646/2012 is that the aforesaid lands were open

spaces/parks, etc. owned by DDA/L&DO/Government and meant for the

residents of B.K. Dutt Colony.

6. Vide order dated 12.03.2012 passed in WP(C) No. 646/2012, this

Court referred the parties to mediation and directed status quo as of that

date to be maintained during the conciliation proceedings.

7. When WP(C) No.646/2012 came up for hearing on 17.05.2012,

this Court noted, from the Status Report filed by NDMC, that it had

invited tenders on 24.02.2012 for construction of the boundary wall, but

the work could not be awarded in view of status quo order passed by the

Court in the meanwhile on 12.03.2012. The learned counsels for the

parties agreed before this Court that the boundary wall as per

Demarcation Report be constructed by NDMC and on construction of the

boundary wall much of the problem would be resolved. The NDMC was

accordingly permitted to go ahead with the construction of the boundary

wall, without prejudice to the rights and contentions of the parties. Vide

order dated 25.09.2012, this Court noted that NDMC had not completed

the construction of the boundary wall.

8. Contempt Case (C) No. 820/2012 was filed by respondent No. 6 in

WP(C) No. 646/2012, alleging disobedience of the order dated

17.05.2012. On notice of the said petition being issued to NDMC, certain

difficulties were expressed with regard to „Dargah‟. It was, however,

stated by the counsel for NDMC that it had already constructed the

boundary wall in regard to two properties, i.e., Chhoti Karbal and Kanti

Masjid. Vide order dated 17.01.2013, this Court noted that the order

dated 17.05.2012 was a consent order and NDMC had not approached the

Court for any modification/clarification of the said order. The contempt

petition was, therefore, disposed of with directions to NDMC to construct

the boundary wall in accordance with the Demarcation Report, within one

month.

9. CM No. 2254/2013 has been filed by NDMC for modification of

the order dated 17.05.2012, whereas CM No. 3241/2013 has been filed by

the petitioner in Contempt Case (C) No. 820/2012, alleging disobedience

of the order dated 17.01.2013, by NDMC.

10. It has been stated in CM No.2254/2013 filed by NDMC that the

exact location of all the boundaries walls as shown in the Demarcation

Report could not be translated on ground after measurements, since the

existing physical status at site was not found matching with the

demarcation report, inasmuch as a number of variations, encroachments,

etc. were found existing at site. It is further stated that after

measurements as per demarcation report were made, it was noted that

construction of boundary wall would engulf the entire width of the public

street/road, with no space left for ingress and egress to the

houses/residences constructed at site and if straight boundary walls as per

report were to be constructed, after joining the identified corners towards

east and south side, then complete 12‟-0‟ wide existing public street of

the colony would have to be sacrificed and all the structures/houses

falling in the alignment of the boundary wall shall first be required to be

demolished by DDA/L&DO. With respect to Naqqar Khana, it is stated

that land of site No. 8 as per Demarcation Report belonged to DDA and

on measurement as per the Status Report, it was noted that the exercise

would involve demolition of built up area of residential flats, Arya Samaj

Mandir and complete coal depot by the L&DO/DDA. NDMC has

accordingly expressed the following difficulties in construction of

boundary wall:-

i) The close boundary of the surrounding land of Dargah Shah-E-

Mardan and Naqqar Khana are not identified by the SDM (Defence

Colony) for the construction of boundary wall as per the demarcation

report.

ii. Only the corner point (A), (B) and (F) drawn on the Nazari Naksha

attached with the demarcation report are identified by the SDM for the

surrounding land of Dargah Shah-E-Mardan and the other corner‟s point

(C), (D) and (E) are fallen on the built up area.

iii. The measurements shown in the demarcation report are not fully

identified/verified at site by SDM for the construction of boundary wall

and location of wall as per the measurements shown in demarcation

report could not be translated on ground by the SDM.

iv. The SDM had actually identified on site the points (A) & (B) and

verbally stated that the straight wall after joining these aforesaid points

(A) & (B) for this north side wall of surrounding wall of Dargah Shah-E-

Mardan of about 260 ft. be drawn for the construction of boundary wall.

It was further stated that the opening for the passage existing width about

23 ft. for gate be left in the boundary wall for the access to the Dargah

Shah-E-Mardan.

v. The Eastern wall had been identified at site in Z shape whereas it

has been shown straight line in the demarcation report of length about

344 ft.

vi. From point (B), if measured point (C) at 344 ft. then it falls into

the built up area and the entire width of street have to be scarified and the

access to the residential premises in vicinity will be closed.

vii. In the eastern wall, there are encroachment by the kabaris that have

to be removed for the construction of boundary wall.

viii. For considering the southern wall after joining the points (C) to (D)

the part of the residential flats have to be demolished and ingress and

egress to be closed for these residential flats.

ix. Portion of the western wall from south west corner is shown as 45

ft. for construction of this wall, the portions of existing residential flats

have to be demolished.

x. SDM (Defence Colony) could not identify at site the point (E) at

231 ft. as shown in demarcation report from point (A). Since no such

straight line alignment along the western boundary of Dargah Shah-E-

Mardan is found and the point (E) falls on the residential area.

xi. No location of boundary wall of Dargah Shah-E-Mardan built up

area has been identified at site. Portion of the southern wall of Dargah

Shah-E-Mardan mentioned length about 21 ft. in the Nazari Naksha

attached with the demarcation report has not fully existed at site now.

11. With respect to Naqqar Khana, the contention of NDMC is as

follows:-

i. Demarcation report dated 13.06.2006 enclosed Nazari Naksha was

only for site No. 8 of Department DDA in Khasra No. 39 and no site for

Naqqar Khana was demarcated as per the demarcation report dated

13.06.2006. Only site No. 8 of DDA was demarcated as per demarcation

report and agreed by all.

ii. Only the points U, V, W, X, Y & Z drawn on the Najri Naksha

attached with the demarcation report for site No. 8 of DDA were

identified besides the other factual error were noticed by SDM at site.

iii. The points Y, Z, U and V fall on the built up are including Coal

Dport, Arya Samaj Manir and Residential area.

iv. SDM (Defence Colony) found at site that the side V-W and W-X

marked on site No. 8 of DDA are to be clear for Naqqar Khana, the side

wall V-W if constructed as per the identification report, the entry to coal

depot shall be closed.

v. Old existing M.S. Post fencing of DDA exists incise the site for the

Naqqar Khana as identified by the SDM.

vi. Commissioner (Land Management) DDA informed vide letter No.

HC/LM (5775)/2011/Legal/S&S-II/DDA/54 dated 16.02.2013 that the

construction of Boundary wall shall be as per the clarification given by

this Hon‟ble Court vide order dated 03.04.2007 and as under:

"Site No. 4 which DDA claim overlaps with the Dargah-Sheh-E- Mardan..... There is no question of encircling site No. 4 at all.....Site No.

8 stands outside the ambit of the order dated 09.11.2005 as held herein above. There is no question of a boundary wall being constructed on site No. 8 as well."

12. In view of the above-referred difficulties, NDMC has expressed its

inability to construct the boundary wall as per Demarcation Report since

factual position at the site is different and at variance with Demarcation

Report dated 08.05.2006 and 13.06.2006 and extensive demolitions are

required to be effected at site. This is also the contention of NDMC that

as of now a clearly constructible site has not been provided and in the

light of the difficulties stated above, it is impossible for it to construct the

boundary wall as per Demarcation Report, thereby rendering the order

incapable of implementation. NDMC has, therefore, sought modification

of the order dated 17.05.2012 to the extent it pertains to construction of

boundary wall as per Demarcation Reports.

13. It would thus be seen that as far as two properties i.e. Chhote

Karbala and Kanati Masjid are concerned, the order passed by the Court

already stand complied. As far as Naqqar Khana (Khasra No.39) is

concerned, we note that vide order dated 3.4.2007, the learned Single

Judge after noticing that since Naqqar Khana was not a WAQF property

as per demarcation report, took the view that it was not possible to direct

NDMC to remove the boundary wall in respect of that property. It was

also noted by the learned Single Judge that Delhi Waqf Board and

Anjuman-E-Haider had not produced any proof of their claim and that is

why another demarcation had to be carried out on 13.6.2006 in respect of

site no.8 of DDA. He, therefore, held that since Naqqar Khana was not

shown to be Waqf property as per demarcation report, it was not possible

to direct NDMC to erect a boundary wall in respect of that property.

That is why no direction was given by him for construction of the

boundary wall with respect to Naqqar Khana.

14. Considering the fact that even as per demarcation report, the

Naqqar Khana was not found to be a Waqf property and the order of the

learned Single Judge dated 3.4.2007 holding that it was not possible to

direct NDMC to erect a boundary wall in respect of that property has

become final, we are of the view that for the present NDMC need not

construct boundary wall in relation to the property described as Naqqar

Khana.

15. As regards Dargah property, we are of the view that the issues

raised in the application of NDMC involve detailed examination of the

matter, in the light of relevant documents, and the actual position

prevailing at the site, and such an exercise, which may also involve

inspection of the site in question, cannot be carried out by the Court.

Therefore, considering the averments of NDMC that (i) from point (B) if

measured at 344 ft, then the wall falls into the built up area and the entire

width of the street have to be sacrificed and the access to the residential

premises in the vicinity will be closed (ii) In the eastern wall, there are

encroachment by rag pickers which have to be removed for construction

of boundary walls (iii) for constructing the southern wall after joining

Points (C) and (D), the part of the residential plots have to be demolished

and ingress and egress have to be closed in these residential plots and,

(iv) for construction of portion of western wall from south west corner,

certain portions in respect of residential flats have to be demolished, and

also taking into consideration that no opportunity of hearing was given to

the occupants of the residential flats/ houses referred to above or to the

rag pickers who have made encroachments towards eastern wall, we are

of the considered view that the matter needs to be examined in detail by

the Chief Secretary, Govt. of NCT of Delhi in consultation with Delhi

Waqf Board, Delhi Development Authority and NDMC, to report to the

Court as to in what manner the order for construction of boundary wall in

respect of Dargah property including the land around Dargah can be best

implemented, so as to enable the Court to take a considered view in the

matter in the light of such report. The Chief Secretary shall also give

opportunity of hearing to the petitioner in WP(C) Nos. 4907/2005 and

646/2012 before submitting his report. The report in terms of this order

shall be submitted by the Chief Secretary within three months from the

date of receipt of this order.

The Chief Secretary shall also examine all such documents which

he finds relevant for the purpose of submitting his report in the matter and

may, if felt necessary, also carry out inspection of the site, in the presence

of all concerned parties. He shall also be entitled to hear other

stakeholder(s) if any, whom he may deem appropriate, irrespective of

whether such person is a party to these proceedings or not.

List on 08.07.2013, awaiting the report.

V.K.JAIN, J

CHIEF JUSTICE

MARCH 18, 2013 BG/rd