Mohd. Ashikian Qureshi vs D.D.A. Through Its Chairman And ...
2014 Latest Caselaw 285 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+           W.P.(C) 1364/2013 and CM APPL. 6324/2013

                                                    Decided on 16.01.2014
IN THE MATTER OF :
MOHD. ASHIKIAN QURESHI                              ..... Petitioner
                   Through: Mr. M.M. Kashyap, Advocate

                        versus


D.D.A. THROUGH ITS CHAIRMAN AND ORS                 ..... Respondents
                    Through: Mr. Rajiv Bansal, Advocate with
                    Mr. D. Ray Chaudhury, Advocate for R-1/DDA.
                    Mr. G.D. Mishra, Advocate for R-2/SDMC.
                    Ms. Mumtaz Ahmed and Mr. Brij Lal, Advocates for
                    the applicant in CM APPL. 6324/2013.


CORAM
HON'BLE MS.JUSTICE HIMA KOHLI

HIMA KOHLI, J. (Oral)

1. The present petition has been filed by the petitioner praying inter

alia for issuance of directions to the respondents No.1 to 3 to restrain all

persons from parking their cars in front of Madini Masjid, near Gate No.7,

Alaknanda Apartments, Alaknanda, New Delhi, and further, take steps to

remove the boundary wall allegedly raised in an illegal manner and

without obtaining any permission from the concerned authorities.

2. Learned counsel for the petitioner states that the petitioner who is a

resident of Kalkaji, is a Namazi and has been offering Namaz at Madini

Masjid for the past several years, but due to cars being illegally parked

near the Masjid, his ingress and egress and that of thousands of other

Namazis into the Masjid is being obstructed. It is contended by learned

counsel for the petitioner that cars are illegally being parked in the open

courtyard in front of the Masjid, which is actually not meant for car

parking. He also states that there is an unauthorised wall that has been

constructed near the Masjid, which ought to be removed as thousands of

Namazis from the adjoining localities who visit the mosque in question are

facing difficulty in offering their prayers due to lack of space. Hence, the

present petition.

3. An affidavit in opposition to the writ petition has been filed by the

respondent No.1/DDA, wherein it is stated that the reliefs prayed for in

present writ petition are the subject matter of a civil suit that has been

instituted by the Local Managing Committee of Madani Masjid and Dargah

and the same is pending adjudication in the Court of the Senior Civil

Judge, Saket. Learned counsel for the respondent No.1/DDA states that

the aforesaid suit came to be instituted by the Managing Committee of

the Masjid on 04.10.2010, after an order dated 19.01.2009 was passed

by the Division Bench in LPA No.535-43/2006 entitled Aravali Resident

Welfare Association and Ors. vs. DDA and Ors.

4. A perusal of the aforesaid decision of the Division Bench reveals

that in the said case, the Court was considering the submissions made by

the appellants/RWA therein to the effect that the subject Masjid itself was

an unauthorised construction and an encroachment on public land.

However, after hearing the parties, the Division Bench had expressed an

opinion that there were a number of factual disputes raised for

consideration, which could not be determined in writ proceedings as

evidence was required to be led before coming to any conclusion. The said

disputed questions of facts included whether the mosque in question had

existed at the site on a particular date and as to what was the stage at

which it had come up. The other disputed questions of facts mentioned in

the aforesaid decision included the status of an entity by the name of

Mulsim Janta Anjuman and its capacity to have proposed any settlement

between the parties before the Division Bench. In the concluding para of

the aforesaid judgment, the Division Bench had observed as below:-

"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."

5. Learned counsel for the respondent No.1/DDA states that it was

after the aforesaid decision came to be passed in the appeal that the

Local Managing Committee of the Masjid had instituted a civil suit for the

relief of permanent and mandatory injunction which is similar to the relief

prayed for in the present petition. The reliefs prayed for by the petitioner

in the present petition are reproduced hereinbelow for ready reference:-

"(i) to give directions to respondents 1 to 3 to take steps to restrain the persons for illegal parking of cars in front of Madini Masjid, near gate no.7, Alaknanda Apartments, Alaknanda, New Delhi.

(ii) to give direction to respondent 1 to 3 to take steps to remove the illegal wall raised at the boundary of courtyard by some persons without any permission of any authority.

(iii) to give direction to respondent no.3 to impound the illegal parked cars so that no car can be parked.

(iv) Pass such other order/orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case."

6. The reliefs prayed for by the Local Managing Committee of the

Masjid in the civil suit instituted by it, are reproduced hereinbelow:-

"(i) Pass a decree for mandatory injunction against the defendant no.1 to 4 to demolish the illegal addition and alteration and unauthorised construction in the flats of Arawali Apartments, Alaknanda, Kalkaji, New Delhi, which caused great hardship to the plaintiffs and other residents of the area for Namaj.

(ii) Pass a decree for mandatory injunction against the defendant no.2 to cancel the lease of the flat holders who have made addition and alteration and additional flats and illegal construction in their flats.

(iii) Pass a decree for permanent injunction against the defendant no.1 to 3 restraining them for parking their vehicles in the boundary of the masjid.

(iv) Pass such other or further orders may kindly be passed in favour of the plaintiff and against the defendants in view of the facts and circumstances of the case in the interest of justice."

7. When the reliefs sought by the petitioner in the present petition are

juxtaposed against those prayed for by the Local Managing Committee of

the Masjid in the civil suit, it is apparent that the relief (iii) in the plaint is

almost the same as reliefs (i) & (iii) prayed for in the present petition.

Having regard to the fact that the Civil Court is seized of the issue that is

being agitated in the present petition and that too in a suit instituted by

the Local Managing Committee of the Masjid itself, this Court is not

inclined to entertain the relief sought by the petitioner at prayer clauses

(i) & (iii).

8. Coming to the relief sought by the petitioner at prayer clause (ii)

which is for issuance of directions to the respondents to remove an illegal

wall raised outside the Masjid, a perusal of the photographs filed by the

petitioner on record, particularly at page 21 shows that the same is only a

toe wall with the height of approximately one and a half/two feet. The

wall of such a height can hardly be treated as an obstruction for the

petitioner to have free access to the Masjid in question. As for the

submission of learned counsel for the petitioner that the grills installed

along the boundary wall of the Aravali Apartment Complex, Alaknanda is

an obstruction, learned counsel for the respondent No.1/DDA states on

instructions that it is a gated colony having seventeen gates and the

boundary wall was constructed for the safety and security of the residents

of the area, at the instance of the DDA itself. The aforesaid fact is

however disputed by the counsel for the petitioner.

9. In the opinion of this Court, the subject boundary wall cannot be

treated as an obstruction to the ingress and egress of namazis to the

Masjid for the reason that there are two gates affixed on the said

boundary wall to regulate vehicular traffic and pedestrian traffic. Simply

because the petitioner desires free access to the Masjid does not mean

that the safety and security of the residents living within a gated colony

can be compromised. Moreover, learned counsel for the respondent

No.1/DDA has stated that the boundary wall in question has not been

raised illegally. Therefore, there is no need to issue any directions for its

removal.

10. For the reasons stated above, this Court declines to issue any

directions in respect of prayer clause (ii) of the petition. For the remaining

reliefs sought by the petitioner, as the said issue is under the active

consideration of the Civil Court, in a suit instituted by the Local Managing

Committee of the Masjid, pursuant to an order passed by the Division

Bench in LPA No.535-43/2006, the petitioner ought to await the decision

in the aforesaid suit.

11. Accordingly, the petition is disposed of alongwith the pending

application.

                                                            (HIMA KOHLI)
JANUARY 16, 2014                                               JUDGE
rkb/mk