Delhi High Court
Shree Naveen Kumar vs Pt.Lakhpat Ram And Ors on 7 March, 2022
Signature Not Verified
Digitally Signed
By:DEVANSHU JOSHI
Signing Date:10.03.2022
00:57:39
$~1, 3 to 4 (SB) and 1 to 5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 7th March, 2022
+ FAO 36/2021 & CM APPLs.2914/2021, 10442/2021, 10444/2021,
20904/2021, 23819/2021, 25868/2021, 25869/2021, 25870/2021,
25884/2021, 26495/2021, 29121/2021, 25885/2021, 43944-46/2021,
3172/2022, 3455/2022, 5641/2022, 5642/2022, 38063/2021,
38289/2021, 39643/2021, 5803/2022, 5865/2022, 7745-46/2022
NEETA BHARDWAJ & ORS. ..... Appellant
Through:
versus
KAMLESH SHARMA ..... Respondent
Through:
WITH
+ CS (OS) 518/2021
+ CS (OS) 520/2021
+ CS (OS) 521/2021
+ CS (OS) 546/2021
+ CS (OS) 552/2021
+ CM (M) 323/2021
+ CM (M) 575/2021
+
Appearances:-
Mr. Lokesh Bhardwaj, Advocate.
Mr. Arun Birbal, Ms. Sonia Singhani, Mr. Sanjay Singh & Ms. Vidhi Gupta,
Advocates for DDA and SDMC ( [email protected] )with Mr.
Manish Gupta, Vice Chairman, DDA and Gyanesh Bharti, Commissioner,
SDMC.
Ms. Santosh Kumar Tripathi, Standing Counsel, GNCTD with Mr. Arun
Panwar & Mr. Siddharth Krishna Dwivedi, Advocates (M-8178951106)
Ms. Sampika Biswal & Ms. Shambhavi Kala, Advocates for Ld.
Administrator (M-9818668876)
Mr. Krishan Gopal Chhokar, Advocate
Mr. R.K. Sinha, Advocate (M-7683095565)
Ms. Mini Pushkarna, Standing Counsel, DUSIB with Ms. Garima Gupta,
CEO, DUSIB, Ms. Khushboo Nahar, Ms. Latika Malhotra & Ms. Shikha
Baisoya, Advocates (M-9810674872)
Ms. Sonia Singhania & Ms. Vidhi Gupta, Advocate for DDA (M-
FAO 36/2021 & connected matters Page 1 of 15
Signature Not Verified
Digitally Signed
By:DEVANSHU JOSHI
Signing Date:10.03.2022
00:57:39
9810172501)
Mr. Kush Bhardwaj, Advocate.
Mr. Nitin Jain, Mr. Vishal Chauhan, Mr. Shivya Sharma, Mr. K.P. Singh,
Mr. Harshil Gupta & Mr. Himanshu Chauhan, Advocates for Shopkeepers.
([email protected] )
Mr. R.K. Bhardwaj &Mr. Neeraj Bhardwaj, Advocate for Mr. Vipul Gaur,
Advocate (M:9312710547) [[email protected] ]
Mr. Rohit Kishan Naagpal & Mr. Dipanshu Gaba, Advocates.
(M:9873730191, email:( [email protected] )
Mr. Sarvesh Bhardwaj, Advocate for Plaintiff. (M:9350301058)
Mr. Vishal Bhardwaj, Advocate.
Mr. Goonmeet Singh Chauhan, Architect.
Ms. Esha Pandey, DCP South-East District, Delhi.
CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J. (Oral)
1. This hearing has been done through hybrid mode.
2. These are part heard matters.
FAO 36/2021 & CM APPLs.2914/2021, 10442/2021, 10444/2021,
20904/2021, 23819/2021, 25868/2021, 25869/2021, 25870/2021,
25884/2021, 26495/2021, 29121/2021, 25885/2021, 43944-46/2021,
3172/2022, 3455/2022, 5641/2022, 5642/2022, 38063/2021, 38289/2021,
39643/2021, 5803/2022, 5865/2022, 7745-46/2022
3. Pursuant to the previous order dated 2nd March, 2022, Mr. Manish
Gupta, Vice Chairman, DDA, Ms. Garima Gupta, CEO, DUSIB, Ms. Esha
Pandey, DCP, South East Delhi, and Mr. Gyanesh Bharti, Commissioner,
South Delhi Municipal Corporation have all joined the proceedings.
4. The redevelopment of the Kalkaji Mandir premises is to take place,
however this Court's interaction with the ld. Administrator as also the
Architect and the other assisting counsels to the ld. Administrator, has
revealed that certain jhuggi dwellers and some Dharamshala occupants have
not yet vacated the premises.
Signature Not Verified
Digitally Signed
By:DEVANSHU JOSHI
Signing Date:10.03.2022
00:57:39
5. Vide previous orders of this Court dated 27th September, 2021, 7th
December, 2021, 9th December, 2021 and 24th December, 2021, it was made
amply clear that none of the occupants who are in illegal occupation of the
Mandir premises can remain in possession.
6. The relevant extract of the order dated 27th September, 2021 is as
under:
"94. The Supreme Court has time and again held that
no unauthorized constructions or encroachments shall
take place in the name of religious places. In Union of
India v. State of Gujarat, (2011) 14 SCC 62, has taken
cognizance of this menace and directed State
Governments and Union Territories to take
appropriate action in an expeditious manner. The
Supreme Court held: "As an interim measure, we
direct that henceforth no unauthorized construction
shall be carried out or permitted in the name of
Temple, Church, Mosque or Gurudwara etc. on public
streets, public parks or other public places etc. In
respect of the unauthorized construction of religious
nature which has already taken place, the State
Governments and the Union Territories shall review
the same on case to case basis and take appropriate
steps as expeditiously as possible."
95. Recently, in Harbhajan Singh etc. v. State of
Punjab and Ors. (Civil Appeal No. 3674/2009,
decided on 4 th December 2019), the Supreme Court
was dealing with tenants who were in occupation of
shops located in Gurudwara Singh Sabha, Fatehgarh
Sahib, Punjab. There were no formal tenancy
agreements in favour of the tenants. The Religious
Premises Act, 1998, dealing with eviction of
unauthorized occupants from premises belonging to
religious institutions, provided for a summary
procedure for evicting unauthorised occupants from
premises belonging to religious institutions. The
Signature Not Verified
Digitally Signed
By:DEVANSHU JOSHI
Signing Date:10.03.2022
00:57:39
legality of the said provision was challenged on the
ground that there was no intelligible differentia
between `normal tenants' who were protected tenants
and tenants of religious institutions. In this context, the
Supreme Court affirmed the position that unauthorised
occupants of the premises of a religious institution
would form a separate class. The finding of the
Division Bench of the High Court, which held that the
public at large has an inherent interest in the
"religious institutions" which were prone to
maladministration and mismanagement, was upheld. It
also observed that any person who is in occupation of
the premises belonging to a religious institution
without a valid allotment, lease or grant is to be
treated as an "unauthorised occupant". The Supreme
Court held that:
"As noticed above, valid grants, leases and
allotments are not construed and treated as
unauthorised occupation. It is only when the
terms of the grant, lease or allotment are not
adhered to or have been determined or the
period of allotment, lease or grant as fixed has
come to an end, that the person in occupation
is treated to be in unauthorised occupation.
This is a precondition which confers the right
on the religious institution to seek eviction of a
person in unauthorised occupation of the
religious premises."
96. In Bal Bhagwan v. Delhi Development Authority
(CM(M) 416/2019, decided on 18th December 2020),
it has been observed that occupants, under the garb of
a place of worship, turn the land into a completely
unpanned encroachment by hundreds of people, which
the authorities ought to curb.
97. In the same vein, it is essential for a Mandir, where
thousands of devotees visit for conducting puja every
day, irrespective of its public or private status, to be
Signature Not Verified
Digitally Signed
By:DEVANSHU JOSHI
Signing Date:10.03.2022
00:57:39
devoid of unauthorized encroachments, which results
in extreme inconvenience and safety as also security
concerns for the devotees.
98. Ld. counsel for the various parties appearing
before this Court, the Local Commissioner, the Court
Receivers, as also the SDMC/ Delhi Police, are all
unanimous in their submissions to this Court that the
shopkeepers, tehbazari holders and other occupants
are not paying proper tehbazari/ licence fees either to
the Committee, or to the baridaars, in a regulated
manner. As per the report of the Delhi police, there are
more than a hundred shops that are operating from the
Mandir and making profits.
99. The manner in which the shopkeepers have
constructed their shops has created obstructions in the
movement of devotees, as is evident from the
photographs which have been placed on record. For
the purpose of the safety of devotees and others in the
Mandir, it is essential that unauthorised
occupants/shopkeepers/tehbazari holders/Chabutara
holders who do not have any valid legal rights to
occupy the same, are liable to be removed in
coordination with the Delhi Police and the SDMC.
100. Accordingly, it is directed that all unauthorized
occupants/encroachers, who do not enjoy valid
tehbazari licenses, and who are in unauthorized
occupation of the said premises, would be liable to be
removed, until and unless there is a Court order
protecting the said occupant. All encroachments in the
Mandir premises, and complex and peripheral areas
are also directed to be removed.
101. The SDMC/ DDA and the Delhi Police shall
render all necessary assistance in removal of
unauthorized encroachments and occupation by
unauthorized shopkeepers, vendors, hawkers, etc.
102. In view of the forthcoming Navratras festival, the
above action shall be taken within a period of five days
from today."
Signature Not Verified
Digitally Signed
By:DEVANSHU JOSHI
Signing Date:10.03.2022
00:57:39
7. Thereafter, vide order dated 9th December, 2021, this Court further
observed as under:
"11. Insofar those persons who are residing within the
Mandir premises, including within the Dharamshalas,
i.e., the three clients of Mr. Bhushan, ld. Counsel- Ms.
Saraswati, Mr. Vinod Kumar Sharma and Mr. Gyan
Singh Sharma, and one client of Mr. Dewan, ld.
Counsel- Ms. Suman Shahi/Mr. Ram Vilas Shahi and
their respective families, are concerned, the following
directions are issued:
a) They shall vacate their residences along with their
families, positively, on or before 25th December, 2021.
It is made clear that no extension shall be granted in
respect of the same, i.e., in respect of vacating the
residences.
b) The said families, whose residences are being
vacated, are free to approach the DUSIB/DDA for any
alternate accommodation. Ms. Malhotra, ld. Counsel
appearing on behalf of Ms. Mini Pushkarna, ld.
Standing Counsel, who appears for DUSIB, submits
that रै न बसेरा (Night shelters) are available to persons
who are using the Kalkaji Mandir premises as
residences and they may approach DUSIB for the
same. However, the use of the same would be on a
temporary basis and no permanent rights shall be
claimed by the said persons. Accordingly, the families
who have been asked to move their residences, may
contact the official of DUSIB namely Mr. Rajender
Gosain, Deputy Director- Night Shelter,
(M:9560596102), for the purpose of allotment of रै न
बसेरा (Night shelters), if needed. It is however made
clear that irrespective of the allotment of the said
shelters/ alternate accommodation, the families in the
residences at the Mandir shall vacate the space
occupied by them, on or before 25th December, 2021."
8. Subsequently, vide order dated 24th December, 2021 in WP(C)
Signature Not Verified
Digitally Signed
By:DEVANSHU JOSHI
Signing Date:10.03.2022
00:57:39
15100/2021 titled Saraswati & Ors. v. Union of India & Ors., where certain
petitioners who were living in the Dharamshalas in the Kalkaji Mandir
premises had sought directions for rehabilitation, this Court held as under:
"18. After perusing the various reports filed by the
Local Commissioner, Court Receivers, and various
civic agencies, it was found that the condition in the
Mandir in respect of civic amenities, day to day safety
and security of the devotees and others in the Mandir,
space for access to ingress and egress, etc., was found
to be pathetic and requiring emergent remedial
measures. Accordingly, this Court had passed various
orders directing removal of unauthorized encroachers
and the illegal occupants from the Mandir premises,
both in the form of those running and unauthorizedly
occupying shops, stores, kiosks as well as those
residing with large families in the dharamshalas within
the Mandir premises.
19. Primarily, the dharamshalas in the Mandir
premises are expected to be catering to the devotees
who come from outside Delhi, and who may need
temporary spaces while they visit the Mandir for
darshan purposes. However, on a query from the
Court, the ld. Counsel for the Petitioners, on 9th
December 2021, as also today, has submitted that these
Petitioners have been residing in the dharamshalas for
several years, ranging upto 40 years. This is obviously
without paying a single penny, in a Mandir, which is
run by the baridaars and other stakeholders with
whom litigation is currently pending before this Court.
There are more than 60-70 suits which were
transferred from various District Courts to this Court,
so that the issues could be resolved comprehensively.
20. This position, in the opinion of this Court, is
completely apposite to the interest and rights of the
devotees who visit the Mandir premises. A careful
Signature Not Verified
Digitally Signed
By:DEVANSHU JOSHI
Signing Date:10.03.2022
00:57:39
balance needs to be struck between the rights of
encroachers, residing within a Mandir premises, and
using the spaces for commercial interests, like the
Petitioners on the one hand and the rights of the lakhs
of devotees who visit the Mandir. The dharamshalas
within the Mandir are not meant to be occupied
permanently by shopkeepers, or their families running
shops/kiosks in the Mandir premises. Further, such
occupation is clearly illegal, as no license fee or teh
bazari was even being paid by the Petitioners.
21. Further, as against what is attempted to be
canvassed by ld. Counsel for the Petitioner today, as
also as is visible from a perusal of the grounds in the
present writ petition, this writ petition is not in the
context of jhuggi jhopri dwellers requiring alternate
premises, as they are occupying a public land. All the
three Petitioners, in the present petition, were not only
residing, but through their families, were also running
shops/kiosks/stores. A perusal of the order dated 9th
December 2021, which records the undertakings given
by the shopkeepers clearly records undertakings by
Mr. Sanjay Baral and Mr. Ajay Baral, who are
children of Petitioner No. 1- Mrs. Saraswati. These
persons were running their shops/kiosks and have been
conducting their businesses within the said Mandir
premises, apart from occupying the dharamshalas.
Thus, they cannot be compared with the jhuggi jhopri
dwellers, who occupy public land, and in respect of
whom, judgments of the Supreme Court in Olga Tellis
v. Bombay Municipal Corporation (1985) 3 SCC 545
and Sudama Singh v. Deepak Mohan Spolia and ors.
(2018) 14 SCC 756, and of the ld. Division Bench of
this Court in Ajay Maken v. Union of India 260
(2019) DLT 58 have been passed. The Petitioners
herein have been unauthorizedly occupying the
premises in the Mandir and have also been, through
their families, unauthorizedly running commercial
shops/kiosks within the Mandir premises for many
Signature Not Verified
Digitally Signed
By:DEVANSHU JOSHI
Signing Date:10.03.2022
00:57:39
years now, and a comparison of their situation with the
situation of poor jhuggi jhopri dwellers is not a fair
comparison.
22. Further, this Court while passing directions for
vacation of premises, both on 27th September 2021
and on 9th December 2021, in FAO 36/2021 and
connected matters, was clearly conscious of the fact
that some kind of temporary alternate accommodation
may be required for them, and for this purpose clear
directions were given for them to contact the ld.
Administrator appointed by this Court, as well as the
concerned officer from DUSIB. The said orders have
already been extracted above. Even today, ld. Counsel
for DUSIB has made it clear that the Petitioners and
their family would be offered रै न बसेरा (Night shelters)
on a temporary basis, till they make arrangements for
their residences, for the whole day. However, yet it
seems that no substantial attempt has been made to
contact either the ld. Administrator nor DUSIB to
attain the said accommodation in रै न बसेरा (Night
shelters). Further, inspite of the order dated 27th
September 2021, asking them to contact the ld.
Administrator having been passed more than 2 months
before the deadline of vacation, and the recent order
dated 9th December 2021, giving them opportunities to
contact DUSIB for alternate accommodation in रै न
बसेरा (Night shelters) having been passed, it is today,
i.e., one day before the date of vacation stipulated in
the order, that the present writ petition has been filed."
9. It is noted that even now some jhuggi dwellers and Dharamshala
occupants have not vacated the premises. In terms of these previous orders
of this Court, it is clear that the Dharamshala occupants are unauthorised
occupants and do not have any legal right to reside in the said premises.
Insofar as jhuggi dwellers are concerned, they too do not have any vested
Signature Not Verified
Digitally Signed
By:DEVANSHU JOSHI
Signing Date:10.03.2022
00:57:39
right to occupy the premises, which is a temple premises. However, taking a
compassionate view of the matter, provision of alternative
accommodation/rehabilitation of such jhuggi dwellers to such jhuggi
dwellers who vacate the Kalkaji Mandir premises, can be explored. This is
keeping in mind the principles laid down in Olga Tellis v. Bombay
Municipal Corporation (1985) 3 SCC 545 and in Sudama Singh v. Deepak
Mohan Spolia and Ors., (2018) 14 SCC 756.
10. Most recently, in Ajay Maken v. Union of India 260 (2019) DLT 58,
a Division Bench of this Court again upheld the application of rehabilitation
policies, as per Sudama Singh (supra) to all slums and slum dwellers in the
NCT of Delhi. A reading of the above judgements would show that in case
of land being used for public purposes, if occupants of jhuggis/slums are
evicted, it is the State's objective to provide them alternative
accommodation, after conduct of requisite surveys and collection of data.
11. Keeping this position in mind, considering that the larger interest of
the devotees is to be safeguarded and that redevelopment is in the larger
interest of the public, the following directions are issued:
(i) The DDA, DUSIB and SDMC are directed to jointly undertake
a survey of the Kalkaji Mandir premises and make a list of the
number of occupants and the number of families who are still
dwelling in the jhuggis as also in the Dharamshalas. The said
survey shall commence tomorrow i.e., 8th March, 2022, and
shall be completed by 10th March, 2022.
(ii). The Vice-Chairman, DDA, CEO DUSIB, and the
Commissioner, SDMC, as also the DCP, South East Delhi, who
are present in Court, shall hold a joint meeting and put up a
Signature Not Verified
Digitally Signed
By:DEVANSHU JOSHI
Signing Date:10.03.2022
00:57:39
report as to the manner in which the entire Kalkaji Mandir
premises, can be got fully vacated. The report shall also specify
as to whether rehabilitation/shelter can be provided to the
jhuggi dwellers, so that redevelopment can commence in the
Kalkaji Mandir premises.
(iii) Insofar as the unauthorised occupants of Dharamshalas are
concerned, the orders for the vacation of the premises in their
occupation have already been passed. In the meeting of the
authorities as directed above, a proper schedule shall be
discussed for evicting the said occupants.
(iv) It is pointed out by some of the counsels appearing in the matter
that only some part of the land used for the Mandir belongs to
the DDA and SDMC and the remaining land does not belong to
any governmental authorities. This Court notes that irrespective
of the ownership of separate portions of land in the Kalkaji
Mandir premises, it is not disputed that the entire land is used
for a public purpose, i.e., as a temple. Bearing this position in
mind, the authorities shall hold the discussion and submit the
report.
12. The meeting of these four officers shall be held on 11th March, 2022
by the Vice Chairman, DDA at 4:00 p.m., in the office of DDA in Vikas
Sadan, Barapullah Rd, beside SBI Bank, Aviation Colony, INA Colony,
New Delhi, Delhi-110023.
13. The report shall be submitted to the Court Master on 14th March,
2022.
14. List on 15th March, 2022 at 2:30 p.m. All officers of DDA, DUSIB,
Signature Not Verified
Digitally Signed
By:DEVANSHU JOSHI
Signing Date:10.03.2022
00:57:39
SDMC and the DCP, South East Delhi, present today, to join the hearing
through video conferencing, on the next date.
15. It is made clear that the above order is being passed in the peculiar
facts of this case which involve a Mandir premises where there are
thousands of devotees who visit on a daily basis and the redevelopment of
this Mandir is in the larger public interest. The same shall not be applicable
in other fact situations.
16. In so far as the redevelopment plan is concerned, Mr. Chauhan, ld.
Architect, has made a detailed PowerPoint presentation (hereinafter,
"PPT"), and has also shown a video of the proposed plan for the
redevelopment of the Kalkaji Mandir premises. The same has also been
viewed by the officers of DDA, DUSIB, as also SDMC and the DCP, South
East Delhi, along with their counsels, ld. counsels for the shopkeepers, and
ld. counsels for various Baridars and Pujaris. Let a copy of the said PPT as
also the video, be emailed to Mr. R. K. Bhardwaj, Mr. Arun Birbal, and Mr.
Nitin Jain, ld. counsels. The same can be shared by the ld. counsels with
other counsels appearing in these matters.
17. On the next date, the Court would hear all the parties in respect of the
proposed redevelopment plan. The proposed redevelopment plan given by
Mr. Chauhan is as under:
(i) The PPT has shown the manner in which the shops would be
created on a temporary basis i.e., in the farther part of the
premises, which is stated to be in the land belonging to the
DDA and SDMC. The current photographs show that this land
is being used as parking and other miscellaneous usage for the
Kalkaji Mandir.
Signature Not Verified
Digitally Signed
By:DEVANSHU JOSHI
Signing Date:10.03.2022
00:57:39
(ii) The cost budget qua each of the temporary shops has been
fixed by Mr. Chauhan, at Rs. 30,000/- approximately. The said
shops would be provided with one light and one charging point
each.
(iii) The shopkeepers would be free to create some temporary
storage for themselves.
(iv) The shopkeepers would have to bear the cost of Rs. 30,000/- for
the erection of the temporary shops, and thereafter, pay the
Tehbazari upon receiving possession of the temporary shops,
which amount would be fixed by the Court.
(v) A list of shopkeepers who would be entitled to allotment of
these temporary shops shall be finalised by the ld.
Administrator and placed before this Court, on the next date. It
is made clear that none of the shopkeepers shall have any rights
in respect of the said temporary shops and they shall merely be
using the space allotted to them on a temporary basis. Upon the
redevelopment taking place, the land would be reverted to the
DDA/SDMC.
18. The redevelopment of the Kalkaji Mandir premises would have to be
undertaken in different phases. However, before proceeding further, this
Court would like to hear submissions of all the ld. Counsels and parties
concerned, on the proposed redevelopment plan.
19. For this purpose, let the matter be listed on 22nd March, 2022, at 2:30
p.m., for orders on the commencement of the erection of the temporary
shops and for the commencement of the redevelopment plan submitted by
Mr. Chauhan. If any of the parties wish to make any suggestions or
Signature Not Verified
Digitally Signed
By:DEVANSHU JOSHI
Signing Date:10.03.2022
00:57:39
modifications with respect to the redevelopment plan, the same shall be
placed before the Court on the next date.
20. Any of the pending reports of the ld. Administrator submitted to this
Court, including Report No.4 dated 15th February, 2022, which are yet to be
circulated, are permitted to be circulated to the ld. Counsels for the parties,
by the Registry.
21. Additionally, a report has been received from UCO Bank as to the
total amounts received in the account in the name of the "Registrar General,
Delhi High Court, A/c Kalkaji Mandir Fund" vide A/c No.l5530110155950
IFSC Code UCBA0001553. As per the said report, the current balance in the
said account is Rs.6,87,59,606/- as on 24th February, 2022. Further, a total of
87 FDRs in Folder-1 as also 2 FDRs and 135 DDs in Folder-2 were received
for encashment, out of which 2 FDRs and 116 DDs are pending with
Transferor Bank for encashment. Let the concerned bank official and the
official from the Registry be present on the next date, to update the Court of
the details of all the deposits received and the amounts yet to be received.
CS(OS) 518/2021
CS(OS) 520/2021
CS(OS) 521/2021
CS(OS) 546/2021
CS(OS) 552/2021
CM (M) 575/2021 & CM APPL. 43796/2021, 29013/2021, 29014/2021 &
43797/2021
CM (M) 323/2021 & CM APPLs. 14178/2021, 20945/2021, 20949/2021,
40269/2021
22. List these matters on 25th April, 2022.
CM APPL. 7745/2022 in FAO 36/2021
23. Interim order dated 11th February, 2022, to continue.
Signature Not Verified
Digitally Signed
By:DEVANSHU JOSHI
Signing Date:10.03.2022
00:57:39
CM APPL. 7746/2022 in FAO 36/2021
24. As recorded in the order dated 11th February, 2022, this application
seeking exemption has already been disposed of.
PRATHIBA M. SINGH
JUDGE
MARCH 7, 2022
aman/dj/ms/ad
