$~ IN THE HIGH COURT OF DELHI AT NEW DELHI …lobis.nic.in/ddir/dhc/GMI/judgement/05-06-2017/GMI...Dahiya, Advs.for R-4/DG ASI Mr. Sanjeev Sabharwal, SC for DDA Mr. Satyakam, ASC for

Rev.P. No. 242/2017 in W.P.(C)No.7955/2015 Page 1 of 75

$~

*IN THE HIGH COURT OF DELHI AT NEW DELHI

+ Review Petition No.242/217 and CM No.21184/2017

in WP(C)No.7955/2015

Reserved on: 30th

May, 2017

% Date of decision : 5th

June, 2017

SAVYASACHI K. SAHAI ..... Petitioner

Through: Petitioner in person.

versus

UNION OF INDIA & ORS ..... Respondent

Through: Mr. U. Hazarika, Sr. Adv. with Mr.

Syed Hasan Isfahani, Mr. Jayant

Mohan, Mr. Aamir Khan, Advs. for

the review petitioners/impleaders

Mr. Vikram Jetley, CGSC for R-1 & 4

Mr. Rajeev Kr. Yadav, Adv. for

Intervenor/applicant in CM

No.18177/2016

Mr. Wajeeh Shafiq, SC for Delhi

Waqf Board with Mohd. Qaseem and

Mr. Dhairaj Kapoor, Advs.

Mr. Jayant Tripathi and Mr. Dinesh

Dahiya, Advs.for R-4/DG ASI

Mr. Sanjeev Sabharwal, SC for DDA

Mr. Satyakam, ASC for GNCTD with

Mr. Pankaj Sharma, Adv. for R-5 & 6

and Insp. Jarnail Singh, SHO PS

Nizamuddin

Ms. Diksha Lal for Mr. Ajjay Aroraa,

Adv. for SDMC

Mr. Mohit Chugh for Mr. Sanjeev

Ralli, Adv. for DPCC


CORAM:

HON'BLE THE ACTING CHIEF JUSTICE

HON'BLE MR. JUSTICE C. HARI SHANKAR

JUDGMENT

GITA MITTAL, ACTING CHIEF JUSTICE

1. This Review Petition No.242/2017 has been filed by four

applicants, namely, Mohd. Shakeel, Mohd. Allauddin and Mohd.

Mehmood (claiming to be the three sons of Late Mohd. Yusuf and

Late Mohammed Yunus) and Mohd. Nasir (son of Mohd. Hakmuddin)

seeking review of our order dated 16th May, 2017. The review

petitioners have, in the review petition, claimed that the same relates

to a land which is the subject matter of the writ petition. For the

purpose of expediency, we reproduce hereunder our order dated 16th

May, 2017 :

“1. Notice.

2. Mr. Rajeev Kr. Yadav, learned counsel for the

petitioner; Mr. Sanjeev Sabharwal, standing counsel for the

DDA; Mr. Vikram Jetly, Central Government Standing

Counsel and Mr. Satyakam, Additional Standing Counsel for

the GNCTD accept notice.

3. It is submitted by Mr. Sanjeev Sabharwal, learned

standing counsel for the DDA that out of the total Tikona

Park which as per the petitioner is 12.08 acres, a very small

portion of the property is old construction and that the same

is not the subject matter of demolition. There is unauthorised

construction which has been raised after 2015.

4. Neither any site plan is placed with the application nor


there is any documents to establish title.

5. Mr. Rajeev Kumar, learned counsel for the petitioner

has drawn our attention to an order dated 12th January, 2011

passed in W.P.(C) No. 3927/2010 wherein this court has

noted earlier decision passed in W.P.(C) No. 1512/1984 and

directions were issued to the Union of India for taking

appropriate steps for removal of unauthorised encroachment

and unauthorised construction as they had taken place in

violation of the orders passed in 1984.

It is pointed out that by the order dated 12th January,

2011, the court had also observed that :

“.... Needless to say, when we have said

unauthroised construction and encroachments ought

to be removed, it is obligatory on the part of the

Union of India that no person makes any kind of

unauthorised construction or encroachment. It

needs no special emphasis to state that if the

petitioner is aggrieved by an action of the Union of

India, it can approach the appropriate legal forum

as advised in law.

3. In view of the aforesaid, we direct the Union of

India to proceed against the persons, who have

unauthorisedly constructed and encroached on the

land in question, in accordance with law.”

(Emphasis by us)

6. The petitioner as well as ld. counsel for the other

parties contend that the properties of these applicants have

come up on this spot after the passing of the above orders.

7. We find that there is nothing to support that the

construction which is reflected in the photographs by the

applicants is old. On the contrary, the photographs show

brand new constructions which are freshly painted. None of

the photographs show any old construction.


8. We may mention that even the photographs placed

with the application prima facie do not show the correct or

the complete position. They certainly do not support the

submissions made in the applications.

9. In para 3 of CM No.18595/2017, a bald assertion of

“since their ancestors” and “in a portion of the park” is

made without any specifications. The applications mention

not a single date of construction or occupancy. No details of

occupation are mentioned. Not a whit of right or title or

interest of the applicant in the subject property is mentioned.

There is no document to support even the occupancy.

10. The respondents shall strictly ensure that no old

construction is demolished.

11. Let a status report in this regard be placed before us

tomorrow i.e. on 17th May, 2017.

12. List on 17th May, 2017.

Dasti under the signatures of Court Master.”

2. Grave urgency was expressed by the review petitioners. It is

submitted by Mr. U. Hazarika, ld. Senior Counsel for the review

petitioners that all the relevant records have been placed along with

the review petition. Additionally, along with the review petition,

documents running into 206 pages were also placed before us. The

same were taken on record.

3. Consequently, we have heard at great length Mr. U. Hazarika,

ld. Senior Counsel for the review petitioners as well as all other

counsels in this review petition.


Description of the subject land and Nature of old structures theren

4. The instant case is concerned with a triangular piece of land

bounded by major roads on all three sides. On the southern side, it is

bounded by the Lodhi Road; on the western side by Mathura Road

and on its eastern side by the Lala Lajpat Rai Marg (earlier known as

the Link Road).

5. Along with the review petition, the applicants have placed a

copy of a notification dated 27th November, 1970 which has been

issued by the Delhi Administration in exercise of powers conferred by

sub-section (1) of Section 12 of the Delhi Development Authority Act,

1957 read with the notification dated 14th February, 1969 issued by

the Government of India. This notification petition restored an earlier

notification dated 10th February, 1970 (not placed on record).

6. In para 2.2 of the review petition, the applicants explain that

this notification notified the Waqf properties giving their descriptions.

Unfortunately, the complete notification dated 31st December, 1970

has also not been placed before us. An incomplete list of some

enclosures have been filed. We extract hereunder the extract of the

notification dated 31st December, 1970 which is relied upon by the

review petitioner :


WARD - I

(1) (2) (3) (4) (5) (6) (7) (8)

S.No Name of

Wakf &

Wakif, if

known

Date or

year of

creation

of Wakf

Nature

of object

of Wakf

Detail of

Wakf

Deed if

any, with

ref. to

registration

records

Description of

Wakf property.

(A) Immovable

its location,

nature, tenure,

plot or

Mpl.No.(B)

Moveable, its

nature &

investment,

(area sq.yds.)

Name and

address of

Mutawalli

Wakf gazette

notification

dated/remarks

xxx xxx xxx

1078. Muslim

Graveyard,

Opposite

Oberoi Inter

Continental

Hotel,

Mathura

Road,

Nizamuddin,

New Delhi.

Over 100

years.

Burial

of dead

Graveyard in

triangular

shape bounded

by Mathura

Road, Lodhi

Road & Link

Road (Area

12.8 area

minus area of

Okhla Canal)

containing

Dargah Shah

Firdaus and

Dargah

Musafir Shah

with a wall

Mosque. Over

200 acc. graves

outside site.

Delhi

Wakf

Board

(31-12-1970

Page

No.1354/231)

7. It appears that there were disputes regarding Government of

India acquiring several Waqf properties between the year 1911 and

1915 for the extension of the Delhi City. There was a lot of

resentment to this acquisition. The Waqf Act, 1954 came to be

promulgated when several such properties being of religious character

were notified as “waqfs” in the Delhi Gazette dated 16th

April, 1970

and 31st December, 1970. Against these notifications, the Union of


India had filed declaratory suits claiming ownership of these waqf

lands. In order to resolve the disputes, in the year 1974, a Committee

was formed under the Chairmanship of Shri S.M.M. Burney, i.e., the

Burney Committee, which had given its recommendations dated 23rd

March 1996 detailing 204 Waqf properties. Inter alia it was

mentioned therein as follows :

“(a) Mosques and Dargahs :

i) The Wakf properties which are in existence on the site

and are in regular use shall be transferred to the Delhi

Wakf Board/Mutawallies and the Government will

withdraw its claim to their ownership. The Wakf

Board/Mutawallies will be empowered to develop these

properties in accordance with the Master Plan and

Municipal bye-laws.

List of such Wakf properties is attached as Annexure

“A”.

ii) The Wakf which are non-existence on site and where

the Government has constructed buildings, parks, etc. shall

be handed over to the Government. The Delhi Wakf Board

shall withdraw its claim to these properties.

List of such properties is attached as Annexure “B”.

iii) The Wakf which are in dilapidated condition but

capable of use, shall be handed over to the Delhi Wakf

Board. The Government shall withdraw its claim to the

ownership of such properties. The Delhi Wakf Board shall

also be permitted to develop them in accordance with the

Master Plan and Municipal bye-laws. The Delhi Wakf

Board shall develop these Wakfs in a befitting manner

keeping in view the architecture of the surrounding area in


which the Wakfs are located. The Delhi Gazette Notification

of such properties shall stand and the Government will

withdraw cases from the Courts against their notification.

List of such Wakf is attached as Annexure “C”.

iv) The Wakf which are in a dilapidated condition and

not capable of use shall not be handed over to the Delhi

Wakf Board. The Delhi Wakf Board have no claim to these

properties and agreement, if any, in respect of such Wakfs

shall be terminated.

List of such Wakfs is attached as Annexure “D”.

(b) Graveyards :

i) The graveyards where graves are in existence and

which have been gazette as such, the Government will

surrender its claim to these properties and also withdraw

their case from the Courts. The Board shall be allowed to

maintain and develop them where possible according to the

Master Plan and Municipal bye-laws. The right of

ownership, maintenance and development shall vest in the

Delhi Wakf Board and the agreement, if any, in respect of

such graveyards will be terminated.

List of such graveyards is attached as Annexure “E”.

ii) The graveyards where graves are not in existence

and which have been developed into Parks or on which

buildings have been constructed by the Government or

Corporation authorities, the Delhi Wakf Board shall be

compensated for the same and the Wakf Board thereupon

shall withdraw its claim to such graveyards in favour of the

Government/Municipal Corporation.

List of such graveyards is attached as Annexure “F”.

(Emphasis by us)


8. The review petitioner has placed before us an extract of the lists

allegedly enclosed with the Burney Report, relevant portion whereof

reads thus :

“WAKF PROPERTIES UNDER DISPUTE WITH L&DO xxx xxx xxx

96. Muslim Graveyard

Opposite Oberoi Hotel

Graveyard is in triangle shape bounded by

Mathura Road, Lodhi Road and Link Road

New Delhi”

“Annexure E

TO THE REPORT OF THE SURVEY COMMITTEE : LAND

& DEVELOPMENT OFFICE :

xxx xxx xxx

14. Muslim Graveyard

Opposite Oberoi Hotel in triangle shape bounded by

Mathura Road, Lodhi Road and Link Road

New Delhi”

9. It is noteworthy thus that the Burney Committee report which is

dated 23rd

March, 1976 makes no reference to any construction of a

mosque or dargahs on the subject land and only refers to a Muslim

graveyard.

10. The review petitioner has thereafter placed on record a copy of

a certificate of a registration effected by the Delhi Waqf Board of the


review petition registering and certifying under Section 125 of the

Waqf Act, 1954 the following waqf properties in the name of Delhi

Waqf Board of the review petition :

DELHI WAQF BOARD

DARYA GANJ, DELHI

CERTIFICATE OF REGISTRATION

xxx xxx xxx

1. Certificate given to DELHI WAKF BOARD, Darya

Ganj, New Delhi

2. Name of Waqf . Muslim Qabrustan (Triangular),

Dargah Shah Firdaus, Dargah Musafir Shah with a

wall type mosque. Graveyard in triangular shape

bounded by Mathura

3. Situated in Road, Lodhi Road and Link Road (Area

12.8 Acrs) minus area of Okhla Canal) containing

Dargah Shah Firdaus and Dargah Musafir Shah

with a wall type mosque over 200 ... graves exists at

site

4. Name of Waqif .................... Entered at Register No.

V, Page 107, Entry No.106, Given under my hand,

this 1st day of March, 1979”

(Emphasis supplied)

11. The Ministry of Works and Housing of the Government of

India implemented the recommendations of the Burney Committee

and transferred certain properties under the Control of the

L&DO/DDA claimed as waqfs to the Delhi Waqf Board. Again, a


completely incomplete list has been placed before us. The review

petitioner does not point out with any clarity as to where the subject

property under dispute in the present petition features in these lists.

12. It is important to note that these notifications do not either

recognize or refer to or record the names of any private persons as any

“mutawalli” with record to the properties mentioned therein.

13. No other notification is placed before us which could create any

right, title or interest in any portion of the triangular park in favour of

the review petitioners.

14. It appears that a challenge was laid to the transfer of the

properties to the Waqf Board by the Union of India, by way of

W.P.(C)No.1512/1984, Indraprastha Vishwa Hindu Parishad v.

Union of India. In this writ petition, an order dated 1st of June 1984

was passed stating that status quo regarding the properties should be

maintained and possession should be retained by the Government. It

was further directed that if lease deeds have not been executed, these

should not be executed. Copy of this order has been placed before us

along with CM No.18177/2016 whereby the Jamia Arabia Nizamia

Welfare Education Society has sought impleadment.

15. On the 5th of March 2014, the Government of India issued a

notification under Section 93 of the Right to Fair Compensation and

Transparency in Land Acquisition, Rehabilitation and Resettlement

Act, 2013 (30 of 2013) withdrawing from acquisition 123 Waqf

properties, which had been under the control of the Land and


Development Office. We are unable to discern herein any reference

to the property which is the subject matter of the writ petition.

However, in the list of the properties under the caption “Properties of

Land and Development Office”, Sr.Nos.40 and 41 read as follows :

“ Properties of Land and Development Office

xxx xxx xxx

40. 13/2, Muslim Graveyard, Village Aliganj, opposite

Southern Gate of Dargah Nizamuddin Aulia alongside

Lodhi Road.

41. 19/2, Muslim Graveyard, Village Aliganj alongwith

Link Road.”

There is no clarity as to which graveyard is referred to above.

Orders in litigation regarding the Amir Khusro Park which have to

be complied with

16. It appears that the Delhi Waqf Board had filed Suit No.4/1980,

Delhi Wakf Board v. Mohd. Yusuf and Mohd. Yunus and 11 others

seeking possession, rendition of accounts and perpetual injunction

restraining the defendants to put up hoardings or allow any person

holding in any portion of the portion A, B and C and that the land A,

B and C as shown in the land, measuring about 60 bighas, which was

a graveyard, comprising of two khanka, a mosque and a grave used

for burial place for Muslim dead bodies since time immemorial. The

Delhi Waqf Board was relying upon the provisions of Section 14 of


the Waqf Act, 1954.

17. Ld. counsels for the parties have placed the orders in previous

litigations before us which we refer hereunder :

(i) Orders dated 1st June, 1984 in WP(C)No.1512/1984,

Indraprastha Vishwa Hindu Perishad & Ors. v. UOI &

Ors. made absolute on 7th January, 1985.

(ii) Order dated 12th January, 2011 in WP(C)No.1512/1984,

Indraprastha Vishwa Hindu Perishad & Ors. v. UOI &

Ors.

(iii) Order dated 12th January, 2011 in W.P.(C)No.3927/2010,

Jamia Arabia Nizamia Welfare Educational Society vs.

Delhi Wakf Board & Ors.

(iv) Order dated 19th October, 2015 in WP(C)No.7955/2015,

Savyasachi K Sahai vs. UOI & Ors.

(v) Order dated 24th February, 2016 in WP(C)No.7955/2015,

Savyasachi K Sahai vs. UOI & Ors.

18. Despite and after the orders of status quo in

W.P.(C)No.1512/1984, encroachments took place in the Amir Khusro

Park/Tikona Graveyard.

19. We extract hereunder the orders passed by this court regarding

the unfortunate happenings on this valuable property :

(i) Orders in W.P.(C)No.1512/1984, Indraprastha Vishwa Hindu

Perishad & Ors. v. UOI & Ors. :

(a) Order dated 26th

August, 2010 (Bench comprising Chief


Justice and Manmohan, JJ.):

“Mr. Parag P. Thripati, learned Additional Solicitor

General has submitted that the Union of India is likely to

take a policy decision within a period of four weeks. It is

submitted by him that if a policy decision comes then there

would be a possibility that the controversy may be put to

rest.

Be that as it may, if a policy comes into existence, there

can be debate in that regard on the next date of hearing.

List on 6th

October, 2010.”

(b) Order dated 6th

October, 2010 (Bench comprising

Chief Justice and Manmohan, JJ.) :

“It is submitted by learned ASG that parties concerned are

looking into the matter.

In view of the aforesaid, as prayed, matter be listed on

19.1.2011.

Counsel for the petitioner has no objection.”

(c) Order dated 12th

January, 2011 (Bench comprising

Chief Justice and Sanjiv Khanna, JJ.):

“6. On perusal of the orders passed and the stand taken,

we are of the considered opinion that the Union of India is

required to consider the matter. Let the Union of India re-

look at the matter and take a decision within six months

form today. Till then, the interim order passed by this

Court on 1st June, 1984 shall remain in force. Needless

to say when we have directed that the Union of India shall

have a fresh look into the matter, it shall keep in view the

law in praesenti and the factual position. All other issues

and contentions are left open.


With the aforesaid direction, the writ petition stands

disposed of.”

(ii) Order dated 5th

September, 2011 on CM No.13013/2011 in

W.P.(C)No.1512/1984, Indraprastha Vishwa Hindu Perishad & Ors.

v. UOI & Ors. (Bench comprising Chief Justice and Sanjiv Khanna,

JJ.) :

“CM No. 13012/2011

This is an application for extension of time by the Union

of India. Regard being had to the assertions made in the

application, time is extended till end of October, 2011.

After the order is complied, a copy of the order shall be

supplied to the learned counsel for the petitioner.

It is hereby made clear that no further extension shall be

granted.

The application is, accordingly, disposed of.”

(iii) Order dated 9th

September, 2015 in Cont.Cas.No.519/2012,

Jamia Arabia Nizamia Welfare v. TR Prasad & Ors. (Bench

comprising Manmohan, J.):

“Ms. Monika Arora, learned standing counsel for

respondent nos. 1 to 3 is permitted to file an additional

affidavit within two weeks.

List on 15th January, 2016.

In the meantime, the Deputy L&DO shall ensure

that no further unauthorised construction and/or illegal


encroachment takes place in the area in question. To

ensure the aforesaid, whatever measures have to be taken

by the Deputy L&DO shall be put in place forthwith.”

(iv) Order dated 26th

February, 2007 in W.P.(C)No.1451/2007,

Jamia Arabia Nizamia Welfare Education v. Delhi Wakf Board &

Anr. (Bench comprising Badar Durrez Ahmed, J.) :

“In the present petition, the grievance is with regard

to an old monument which is supposed to be over 500

years old. The photograph of the same is placed at page 9

of the paper book. The said monument is adjacent to Delhi

Public School, Mathura Road, New Delhi and is situated

at Khasra No.484. The petitioner claims itself to be a

registered society looking after the affairs of the Masjid

and Madarsa which is located in the same Khasra. This

claim of the petitioner is disputed by Mr. Waziri, who

appears on behalf of the Wakf Board. It is made clear that

the order that is being passed in this matter does not in

any way recognise the status of the petitioner as a society

lawfully entrusted with the management of the Mosque or

the Madarsa. However, directions are being passed

because the property in question is admittedly Wakf

property over which the Wakf Board exercises

superintendence and Mr. Waziri, who appears for the Wakf

Board has assured this court that if there are any

encroachments and unauthorized occupants in the said

premises then the Wakf Board shall take appropriate

action in terms of the provisions of the Wakf Act, 1995 for

removing any such encroachment/unauthorised occupants.

In view of this statement made by Mr. Waziri, no further

direction is necessary in this petition.

The writ petition stands disposed of.”


20. Regarding these encroachments, this court in

WP(C)No.3927/2010 Jamia Arabia Nizamia Welfare Educational

Society vs. Delhi Wakf Board, speaking through a Bench of the Chief

Justice and Sanjiv Khanna, JJ., on the 12th of January 2011,

specifically directed as follows :

“2. We have been apprised by Mr. Rakesh Tiku, learned

senior counsel for the petitioner that the encroachment

should be removed. In view of the decision pronounced in

Writ Petition (Civil) No. 1512/1984, the Union of India shall

take appropriate steps for removal of

unauthorized encroachment and unauthorized construction

as the same taken place in violation of the order passed by

this Court in the year 1984. Needless to say, when we have

said unauthorized construction or encroachment ought to be

removed it is obligatory on the part of the Union of India

that no person makes any kind of unauthorized construction

or encroachment. It needs no special emphasis to state that if

the petitioner is aggrieved by an action of the Union of India,

it can approach the appropriate legal forum as advised in

law.

3. In view of the aforesaid, we direct the Union of India

to proceed against the persons, who have unauthorisedly

constructed and encroached on the land in question, in

accordance with law.”

(Emphasis supplied)

21. Thereafter, the present writ petition (W.P.(C)No.7955/2015)

was filed by the writ petitioner seeking a mandamus to the respondent


nos.2 to 4 to take appropriate steps and action against the illegal

encroachments and unauthorised constructions inside and around

Amir Khusro Park.

22. On the 19th

of October 2015, this court noted the status report

filed by the respondent no.6 SHO Nizamuddin Police Station for

assistance in removing the encroachments in the Amir Khusro Park.

We extract hereunder paras 5 to 8 of the order dated 19th

October,

2015 which read as follows :

“5. Respondent No.2/ DDA in its status report has pointed out

that the plot in question measuring 12.8 acres was allotted by

L&DO Department on 05.01.1972 for the purpose of

developing and maintaining the same as Green Land. Since

then, as per terms of allotment, the Horticulture Division of

respondent No.2/DDA is maintaining the same. Status report

admits that the same has been illegally encroached upon in

the shape of several Jhuggi Jhopries which are illegally

constructed in the Park. Garbage and malba is also dumped

inside the Park. It is further stated that the condition of the

Park has deteriorated and any attempt to carry out the work

of cleaning is objected to by the local residents illegally

residing in the Park who create hindrance in execution of

the cleaning work. It is urged that letters were sent to the

concerned Police Station to take action against the illegal

encroachers on the government land, but no steps have been

taken by the Police and no Police protection is being

provided.

6. The two status reports make it clear that the two authorities

are passing the blame on each other. A serious problem of

unauthorised and illegal encroachments on govt. land exists. There is apprehension of law and order problem.


7. In the light of the above, it is necessary for the respondents

to take immediate action for removing encroachments and

illegal construction inside the Park.

8. We therefore, issue the following directions:

i) The concerned Chief Engineer (or equivalent officer) of

DDA in consultation with the concerned Police DCP of the

area, shall fix an appropriate date for removing of all

unauthorised encroachments and illegal constructions

inside the Park. The needful will be done within three

months from today.

ii) The Police will provide all necessary protection for

carrying the task by respondent No.2/DDA.

iii) After necessary task is accomplished, respondent

No.2/DDA shall carry out appropriate measures to ensure

that the unauthorised construction and land grabbing in any

form is not repeated again. If necessary, appropriate wall or

fencing shall be constructed/installed to protect the land.

iv) There is a specific reference in the status report of the

Police to a Rain Basera stated to have been constructed by

Shakti Shalini NGO. The exact status of this Rain Basera is

not stated in the status report, i.e. as to whether it is set up

with the prior permission of the concerned authority or not. If

the same has a valid subsisting permission from the concerned

authority, then only it will not be subjected to any coercive

step as envisaged in the order as above.”

(Emphasis by us)

23. Our attention has been again drawn to the order dated 24th


February, 2016 in the present writ petition wherein the court noted

that the above directions made on 19th

October, 2015 have not been

complied with. We extract hereunder paras 3 to 6 of the order passed

by this court (Chief Justice and Jayant Nath, JJ.) on the 24th

of

February 2016 which read thus :

“3. Mr.Sanjeev Sabharwal, the learned Standing Counsel

appearing for the DDA states that the needful could not be

done inadvertently and the needful will be done within four

weeks.

4. The Delhi Police had filed a status report. In the status

report, it is stated that a copy of the communication which is

addressed to the Joint Commissioner of Police dated

26.10.2015 has also been sent to DDA. However, it is urged

that the DDA has taken no steps to seek police protection for

appropriate action in the matter. Relevant portion of the

communication written to the DDA reads as follows:

“In this connection, it is submitted that large chunk of

land is lying vacant opposite Basti Hazrat Niazamuddin at

Lala Lajpat Rai Marg, which is popularly known as Amir

Khusro Park, Hazrat Nizamuddin, New Delhi. Since, the said

land is lying vacant, vagabonds staying in the area used to

put jhuggies on the said area. Round the clock, staff has been

deployed in Amir Khusro Park. However, these vagabonds

used to encroach space by first putting tarpaulin and then

putting Bamboo sticks at odd hours to be used for stay and

starts living therein. Time to time efforts were made to

remove the encroachments at our own, but due to strong

protest of residents, no fruitful result came out as they put

forward their females and also throw children in front of the

police party.


It has also come to the notice that one Baba

Firozuddin, who is running a grocery shop in the said area

is doing encroachment in a well planned manner through

his family members and collecting money from outsiders for

providing them space for putting jhuggies on the said land.

To put pressure on the local police, recently Baba

Firozuddin also filed a writ petition against the SHO/H.N.

Din with the allegations that SHO/H.N. Din is forcibly

removing the jhuggies. However, the same was dismissed by

the Hon’ble Delhi High Court.

……

There is strong apprehension that there can be a major

law and order problem in future at the time of removal of

these jhuggi residents as some anti social elements have also

started to live there, who used to do various crimes like

robbery, snatching, burglary etc. in nearly localities.

Recently, clashes also took place between different groups for

construction of jhuggies and cross cases were also registered.

The several intimations have been sent to DDA authority at

police station level to protect the area by way of putting wall

or deployment of guards to keep a check on unauthorised

encroachment. This office has also written to the Deputy

Director (LM), DDA, Vikas Sadan, New Delhi vide this office

memo/letter No.10997/HAX(AC-III)/SED, dated 17.04.2015

(Annexure-A).”

The above report shows the urgent need to take steps

as directed by this Court on 19.10.2015.

5. We are not satisfied with the explanation given by the

DDA for its non-compliance with the order dated

19.10.2015. However, in the interest of justice, as requested

by the learned counsel appearing for the DDA, we grant


another one month period to DDA to comply with the

previous order of this Court dated 19.10.2015.

6. Call on 30.03.2016. The concerned Chief Engineer, DDA

and the concerned Deputy Commissioner of Police shall

remain present in person in Court on that date.”

(Emphasis supplied)

24. It is noteworthy that the review petitioner has made no

grievance with regard to the above order dated 12th

January, 2011 in

W.P.(C)No.3927/2010; orders dated 19th October, 2015 and 24

th

February, 2016 passed in the present writ petition. Despite knowledge

of the orders of the courts and action of the police and DDA as noted

above, the writ petitioners have admittedly contumaciously flouted the

same.

25. The writ petition thereafter was listed on 19th

April 2017 when

the non-compliance with the previous orders was noted and it was

directed as follows :

“2. …We are informed by Mr. Sanjeev Sabharwal, learned

standing counsel for the DDA that despite best efforts, police

assistance has not been made available. This is disputed by

Mr. Satyakam, learned additional standing counsel for the

police. Despite the divergence on this aspect, both learned

standing counsels submit that the orders of this court have to

be strictly complied with.

3. It cannot be denied that encroachment and trespass

cannot be permitted, least of all permitted to continue in

perpetuity. The aspect of non-compliance of the specific


directions of this court is an even more serious matter and is

liable to render the concerned officers to appropriate action

under the Contempt of Courts Act, 1971.

4. On request of the learned standing counsels for the Delhi

Development Authority and the Delhi Police, they are

permitted time of three weeks to comply with the directions

made on 19th October, 2015. A report to this effect shall be

filed before this court on 22nd May, 2017.”

(Emphasis supplied)

26. It is noteworthy that on the 28th

of March, 2017, the review

petitioner filed CM No.13164/2017 inter alia seeking directions

against the respondents to take appropriate steps against the

demolition of the boundary wall which had been constructed by the

respondents to avoid further illegal encroachments and unauthorized

constructions in the park and a further direction to the respondents to

cover the entire boundary wall by putting iron fence on the boundary

wall to control illegal encroachment. Notice was issued on this

application as well on 19th April, 2017.

27. It was at this stage, that the review petitioners filed CM

No.18595/2017 seeking impleadment under Order I Rule 10 of the

CPC accompanied by CM No.18596/2017 seeking a direction to the

respondents to defer the demolition till the next date of hearing. This

application was premised on the plea that the applicants and their

family were residing in the bounded area of the masjid and the dargah.

28. On 16th

May, 2017, we had noted the submission of the


Standing Counsel for the Delhi Development Authority that out of the

total tikona park, which as per the petitioner was measuring 12.08

acres, a small portion of the property is old construction and that the

same is “not the subject matter of demolition”. We also noted that

there was unauthorised construction which had been raised after 2015.

The order dated 12th January, 2011 passed in W.P.(C)No.3927/2010 as

well as the earlier decision in W.P.(C)No.1512/1984 were placed

before us and were noted by us.

29. Upon the examination of the photographs, we found that the

photographs relied upon by the review petitioners were showing brand

new constructions which had been freshly painted and newly tiled

which were not old constructions. On 16th

May, 2017, it was also

noted that the photographs placed with the application did not show

the correct or the complete position. We had noted the position placed

by the applicant in CM No.18595/2017 which was in the following

terms :

“9. In para 3 of CM No.18595/2017, a bald assertion of

“since their ancestors” and “in a portion of the park” is

made without any specifications. The applications mention not

a single date of construction or occupancy. No details of

occupation are mentioned. Not a whit of right or title or

interest of the applicant in the subject property is mentioned.

There is no document to support even the occupancy.”

30. The photographs actually show that completely unauthorized

and illegal structures have come up even on the pavements alongside


the main road which are obstructing the right of way and cannot be

permitted.

31. Along with the review petition, a site plan has been placed on

record showing the old structures. In the site plan, certain structures

are shown encircled in red which have been clearly referred to as

disputed structures. The notification of 1970 or thereafter make no

mention of such structures. Therefore, these structures cannot be

maintained.

32. Conscious of the need to ensure that the old constructions,

which were the subject matter of the notifications of the Government

of India, had to be protected, in paras 10 and 11 of the order dated 16th

May, 2017, we had directed as follows :

“10. The respondents shall strictly ensure that no old

construction is demolished.

11. Let a status report in this regard be placed before us

tomorrow i.e. on 17th May, 2017.”

33. On the 17th

of May 2017, we were informed by the counsels for

the official respondents as follows :

“Mr.Sanjiv Sabharwal, learned counsel for the DDA

submits on instructions from Mr.Sunder Lal, Deputy Director

(South East) of land management, DDA that demolition

action is being carried out on the site. He states that gross

illegal activities viz. workshop of airconditioner/car repair,

parking of e-rikshaws’, against payment and even real estate

transactions were being undertaken on the Government

land.


Mr.Avinash, learned counsel appearing for the

applicants submits that the applicants may be permitted to

remove their belongings from the spot in question. The

concerned authorities, if approached, shall permit the

applicants to remove their belongings which shall be

positively be removed within two days from today.

It is made clear that we have not granted any stay of the

demolition action. Status report be filed before the next date

of hearing.

List on 22nd May, 2017.

Dasti to parties.”

34. Thereafter, a newspaper report which appeared at page 7 of the

Saturday’s Edition of Times of India dated 20th May, 2017 was

brought to our notice which compelled this court to call upon the

matter for urgent listing on the same day i.e. Saturday the 20th of May

2017 when this court recorded the following order :

“ 1. The newspaper report captioned as “Home razed, they

are back on streets” at page 7 of today’s edition The Times of

India was brought to our notice compelling us to make a

direction for urgent listing of this matter today.

2. The newspaper report suggests that pursuant to court

order, demolition has been effected of a night shelter in

Nizamuddin causing displacement of 100 people and

rendering them shelter less.

3. While hearing WP(C)No.4417/2017, Sunil Kumar Aledia

vs. Government of NCT of Delhi filed by certain persons


claiming to have been occupying a night shelter in Amir

Khusro Park, we had noted the submissions made by Mr.

Satyakam, Additional Standing counsel of the GNCTD, Mr.

Parvinder Chauhan, Standing Counsel for DUSIB and Mr.

Sanjeev Sabharwal, Standing Counsel for the Delhi

Development Authority to the effect that there were three

night shelters in close proximity of the Amir Khusro Park,

Delhi and that the persons who were using the night shelter in

the Amir Khusro Park, Delhi were being accommodated in a

nearby night shelter.

4. We are further informed by Mr. Satyakam, Additional

Standing counsel for GNCTD that this Amir Khusro Park

night shelter was being used as night shelter only by few

women and their children, who desired to be placed close to

the Amir Khusro Park area.

5. Mr. Parvinder Chauhan, Standing Counsel for DUSIB

confirms this position and informs us that the children were

going to schools in the neightbourhood area, for this reason,

the women and children who were using the Amir Khusro

Park shelter have been accommodated in the night shelter

which is near the Hazrat Nizamuddin Auliya Dargah which

had extra space still available.

6. A very unfortunate part of the newspaper report is pointed

out by ld. Standing Counsels as projected in the newspaper.

The report includes a picture of a man and an infant child

sleeping in the open. This picture does not relate to inmates of

the night shelter for the obvious reason that the night shelter

in question was being used for women and children. It is

pointed out that therefore, the picture of sleeping man is

deliberate act to mislead the public and create a wrong

impression against the court and the statutory authorities.


7. The Government of NCT of Delhi shall inform this court

also as to why steps are not being taken to ensure that

adequate shelters are provided to all the homeless in Delhi

and how green belts can be converted into shelter homes in

violation of the law.

8. We may note that Inspector Jarnail Singh, SHO Hazrat

Nizamuddin; Mr. Arun Kumar Singh, Deputy Director DUSIB

and Assistant Director Shyam bijay (Horticulture) of the DDA

are present today before us.

9. In order to confirm that adequate shelter has been made

available to the erstwhile occupants of the demolished Amir

Khusro Park night shelter from the demolished shelter home,

we appoint Mr. Lorren Bamniyal, Registrar (Appellate) as

amicus curiae to conduct a spot inspection today itself and

submit a report to this court.

10. The Local Commissioner shall be accompanied by counsel

for the parties. The Local Commissioner shall visit the spot

today itself and submit report to this court.

11. Inspector Jarnail Singh, SHO PS Hazrat Nizamuddin shall

ensure adequate security to the Local Commissioner and the

team of lawyers.

12. Let photographs of the shelter home where the occupants

have been accommodated and facilities made available be

taken by the Local Commissioner and placed before us. The

respondents shall make available the photographer and bear

its expenses.

13. Mr. Satyakam informs us that the Supreme Court was

approached by a party regarding some other constructions in

the Amir Khusro Park who has been given liberty to seek


review of the order dated 16th May, 2017 in

WP(C)No.7955/2015 from this court.

14. We have taken up only the matter of the occupants of the

night shelter on account of the urgency noted above in the

matter. We are not awaiting the filing of the review petition

but have issued the above directions in respect of the

occupants of the night shelter.

List on 22nd May, 2017.

Dasti under signature of court master.”

35. On 22nd

of May, 2017, orders were passed by us premised on

the report of the Local Commissioner dated 22nd

May, 2017, with

regard to the rehabilitation of the persons who were occupying the

temporary night shelter which had been permitted to come up in the

Amir Khusro Park. It has been ensured that all such bona fide

occupants stand fully rehabilitated.

36. It appears that the review petitioners had in the meantime,

assailed our order dated 16th

May, 2017 before the Supreme Court of

India by way of a Special Leave Petition diarized vide no.16022/2017

which was withdrawn with liberty to file the present review petition.

No such review was filed even till 24th of May 2017 when we had

recorded the following :

“1. Pursuant to the last order, we are informed by Mr.

Ajjay Aroraa, ld. Standing Counsel for South Delhi

Municipal Corporation that a meeting took place between the

Commissioner,


SDMC and the CEO of DUSIB on the 23rd

of May 2017 and

all efforts are underway so that there is no inconvenience to

the persons who stand relocated from the earlier shelter

home.

2. We are informed that the women and the children are

being lodged on the first floor of the night shelter, which has

been assigned serial No.10. We are informed that so far as

male users of the night shelter are concerned, DUSIB is

raising temporary structures on the terrace and ensuring

every facility therein.

3. The DUSIB shall ensure that this is only a temporary

measure and that the male occupants are at the earliest

suitably accommodated at a night shelter, which is close by.

4. Inspector Jarnail Singh, SHO, PS Hazrat Nizamuddin

shall assist the other authorities in carrying out these

measures.

5. We are informed by ld. counsels for the authorities

that after our order dated 16th

May, 2017, extensive

demolition action for removing encroachments in the Amir

Khusro Park was effected. Our order dated 17th

May, 2017

(passed in WP(C)No.7955/2015) notes the information

given on behalf of the authorities that demolition was

underway. The order dated 17th

May, 2017 also records the

request as a consequence made on behalf of certain persons

for permission to remove their belongings from the spot,

which was permitted.

6. The orders dated 19th May, 2017 in

WP(C)No.4417/2017 show that rehabilitation of displaced

persons which included encroachers has also been closely

monitored by this court. In fact suo motu cognizance of a

newspaper report was taken and an urgent sitting held on


Saturday the 20th

May, 2017. A Senior Registrar of the Court

was appointed as Local Commissioner to ascertain the well

being of persons who claimed earlier occupancies. His

detailed report is before us. The position disclosed therein is

not disputed.

7. Mr. Syed Hasan Isfahani, ld. counsel for applicant in

CM Nos.18595-596/2017 in WP(C)No.7955/2015 submits

that a Special Leave Petition which was diarized vide

D.No.16022/2017 was filed assailing order dated 16th May,

2017 in CM Nos.18595-596/2017 in WP(C)No.7955/2015.

He submits that the Supreme Court has directed that status

quo shall be maintained for a period of two weeks to enable

the petitioner to approach the High Court. The said order of

the Supreme Court is extracted hereinbelow :

“Mr. Siddharth Dave, learned counsel appearing for

the petitioners submits that there are certain

structures which are appurtenant to the Masjid and

Dargah Musafir Shah situated at Amir Khusro Park,

Lala Lajpal Rai Marg, New Delhi in which the

mutawalli and his family (petitioners herein) are

residing peacefully and managing the Dargah for a

long time. He also refers to the application(s) for

impleadment and directions that he has filed before the

High Court in which he has asserted this submission.

He states that the said point was not considered by the

High Court. Accordingly, learned counsel appearing

for the petitioners prays for liberty to withdraw the

present Special Leave Petitions and instead move the

High Court for review of the order. Liberty, as prayed,

is granted. The petitioners will be at liberty to move

this court once again if the order in the review is

adverse to them. The Special Leave Petitions are

accordingly closed on withdrawal with liberty as

aforesaid. We also request the High Court to


entertain an application for review to be filed by the

petitioners. In the meanwhile, status quo, as it exists

today, shall be maintained for a period of two weeks to enable the petitioners to approach the High Court.

The special leave petitions are disposed of in the

above terms.”

(Emphasis supplied)

The period of two weeks is expiring on 2nd

June, 2017.

No application has been filed till date.

8. We have queried Mr. Syed Hasan Isfahani, ld. counsel

for the applicants in CM Nos.18595-596/2017, to inform this

court with regard to the property which is the subject matter

of the special leave petition (diarized vide D.No.16022/2017)

before the Supreme Court of India. However, Mr. Isfahani is

unable to inform this court about the same or the status

thereof. Despite the liberty granted by the Court, no

application in this regard has been filed before us till date.

No copy of the Special Leave Petition, which was filed in the

Supreme Court of India has been placed before us.

9. Mr. Sanjeev Sabharwal, ld. Standing Counsel for the

DDA has handed over an information conveyed to an

applicant, Shri A.K. Khan (under the RTI Act) by the Ministry

of Urban Development. The same reads as follow:

“A triangular piece of land bounded by Lala Lajpat

Rai Marg, Lodhi Road and Mathura Road was

allotted

to DDA in 1972 as green. Hence at present the land is

with DDA”

10. Mr. Sanjeev Sabharwal, ld. Standing Counsel for the


DDA has handed over a file containing the photographs of

the demolished properties in the Amir Khusro Park and

only a sparkling new structure remains at the spot. This

structure is also not residential.

11. It is agreed by all the counsels who are present today

before us that the law, including the provisions of the DDA

Act; Statutory Master Plan; Delhi Municipal Corporation

Act as well as the Government notifications have to be

strictly complied with. The ld. counsel for the applicants has

agreed that no new structures can be protected or saved

under any statutory provision or notification.

12. The Amir Khusro Park is in close proximity to the

Humayun’s Tomb, a UNESCO Heritage site and the Hazrat

Nizamuddin Auliya Dargah. It is a Master Plan green meant

for use by the residents of the Nizamuddin area and the

thousands of visitors to the Monument and Dargah visit the

spot.

13. It requires to be noted that this small park is a

triangular island bounded by busiest traffic roads that is the

Mathura Road, (opposite Delhi Public School), Lodhi Road

(between Golf Links and Nizamuddin) and the Lala Lajpat

Rai (connecting South Delhi to India Gate). As such no

habitation can exist within this park because of the safety

concerns and lack of access on account of the unending

and constant traffic.

14. It appears that an effort is being made by

unscrupulous elements to encroach on public land and

depriving the public and visitors to the Hazrat Nizamuddin

Auliya Dargah as well as the Humayun Tomb, the benefit

of the park, an oasis in the middle of a brick and concrete

jungle which the area has become.


15. Our order dated 16th

May, 2017 duly notes the nature

of encroachments as follows:

“9. In para 3 of CM No.18595/2017, a bald

assertion of “since their ancestors” and “in a portion

of the park” is made without any specifications. The

applications mention not a single date of construction

or occupancy. No details of occupation are

mentioned. Not a whit of right or title or interest of

the applicant in the subject property is mentioned.

There is no document to support even the occupancy.

10. The respondents shall strictly ensure that no

old construction is demolished.”

16. No provisions of water and electricity connections are

pointed out in CM Nos.18595-596/2017

(WP(C)No.7955/2017) by ld. counsel for the applicants. No

document in support of the pleas is enclosed. According to

the authorities, the site is a park.

17. No sewage facilities have also been pointed out

without which habitation would be impossible. It is legally

impermissible.

18. Mr. Syed Hasan Isfahani, ld. counsel for applicants in

CM Nos.18595-596/2017 in WP(C)No.7955/2017 was also

present before us when we listed the matter earlier and is

present even today without any instructions.

19. It needs no elaboration that the order passed by the

Supreme Court is required to be strictly followed. The

above extract would show that new encroachments were not

within the purview of the Supreme Court proceedings. The


respondents shall, therefore, ensure that with regard to any

old structures, if existing on the spot, which are the subject

matter of the order dated 19th

May, 2017 passed by the

Supreme Court of India, status quo as obtained, is

maintained.

20. In view thereof, while taking action as directed, the

DDA shall strictly abide by the order of the Supreme Court

regarding removal of any remaining new structure in the

Amir Khusro Park.

The DDA shall maintain a videography of the action

which is taken.

21. No new structure or encroachment shall be permitted

to in the Amir Khusro Park, Delhi by the respondents.

22. Inspector Jarnail Singh, SHO, PS Hazrat

Nizamuddin shall render full assistance to the DDA in

ensuring that the law is complied with.

23. The respondents shall ensure that the Amir Khusro

Park is further preserved, developed and maintained as a

park.”

(Emphasis by us)

The above statements on behalf of the review petitioners

completely preclude the stand now pressed in the review.

37. Other applications being CM Nos.20502-03/2017 came up on

25th of May 2017 wherein notice was issued. On this date, we had

recorded the following position as subsisting on the spot :


“CM Nos.20502-20503/2017

xxx xxx xxx

3. It is submitted by Mr. Sabharwal that he may be

permitted to file a status report inasmuch as photographs

enclosed with the application do not depict the correct

picture and that they relate to new structures which have

been the subject matter of the recent demolition action.

4. This position is not disputed by the applicant that the

demolition has taken place.

5. Let a status report be filed by the respondents.

6. Let a copy of this application be furnished to all other

parties within one day.

38. The present review petition has been filed thereafter and listed

before us only on the 30th of May 2017 when notice was issued and

accepted by the other side.

39. By our order dated 30th May, 2017, the Delhi Development

Authority has been directed to remove the malba from the spot :

“W.P.(C)7955/2015

xxx xxx xxx

11. In the meantime, keeping in view the ensuing rains

and the onslaught of monsoon as well as the diseases which

may result if the malba and garbage is left lying on the

ground, the DDA shall forthwith remove the malba.”

(Emphasis by us)

40. It is noteworthy that in the meantime, the Delhi Wakf Board has

sought impleadment by way of CM No.15772/2016. The Delhi Wakf


Board has disputed the entitlement of the review petitioner on the

subject land contending that the tikona Kabristan (Graveyard) stands

notified as a Wakf property in the notification issued by the Delhi

Administration dated 31st December, 1970 at Sr. No.231. This

application was allowed by us by the order dated 30th of May 2017.

Yet another application being CM No.20502/2017 has been filed by

Shri Abdul Khalid Sultani as a descendent of Shafiq Mia seeking

impleadment and CM No.20503/2017 has been filed for directions in

which after issuing notice, time has been given to file replies. These

applications were directed to be listed on 24th

of July 2017.

41. In the aforesaid W.P.(C)No.2901/2014, Indraprastha Vishwa

Hindu Parishad v. Union of India, on 12th January, 2011, after noting

that the writ petition would be treated as a representation and the

decision taken thereon, after granting opportunity of hearing to all the

stakeholders including the Delhi Waqf Board, it was directed that “till

such time, status quo obtaining as on today with regard to the

possession of the land in question shall be maintained”. The writ

petition was disposed of.

Whether the review petitioners make out that they are “mutawallis”

of the property?

42. Mr. U. Hazarika, ld. Senior Counsel arguing for the review

petitioners has pressed the locus standi of the review petitioners to

intervene in the present writ petition premised on their claim of title


and entitlement to the land.

43. The review petitioners have asserted that their predecessor-in-

interest i.e. their father “was appointed as a mutawalli/caretaker of

the dargah by the predecessor mutawalli”. Let us now examine as to

how the review petitioner seeks to establish the claim of the

predecessor mutawalli.

44. A “mutawalli” is statutorily described under the provisions of

Section 3(i) of the Wakf Act, 1995 in the following terms :

“3. Definitions.—In this Act, unless the context

otherwise requires,—

xxx xxx xxx

(i) “mutawalli” means any person appointed, either

verbally or under any deed or instrument by which a wakf

has been created, or by a competent authority, to be the

mutawalli of a wakf and includes any person who is a

mutawalli of a wakf by virtue of any custom or who is a

naib-mutawalli, khadim, mujawar, sajjadanashin, amin or

other person appointed by a mutawalli to perform the

duties of a mutawalli and save as otherwise provided in this

Act, any person, committee or corporation for the time being

managing or administering any wakf or wakf property:

Provided that no member of a committee or corporation

shall be deemed to be a mutawalli unless such member is an

office bearer of such committee or corporation”.

45. It is therefore, apparent that a mutawalli has to be appointed,

“either verbally or in deed or instrument by which a wakf has been

created, or by a competent authority” to be a mutawalli of a wakf. It

also includes a person who is a mutawalli of a wakf by virtue of any


custom.

46. By the order dated 6th of October 1981, in Suit No.4/1980, the

trial court decided an application under Order XL of the CPC for

appointment of a receiver in Suit No.4/1980. It is relevant for our

consideration to the extent that it notes the claim set up by Mohd.

Yusuf and Mohd. Yunus, the predecessors-in-interest of the review

petitioners. They even disputed the existence of a graveyard on the

subject land.

47. The review petitioners have claimed to be the sons and

successors of Mohd. Yusuf and Mohd. Yunus. These two persons

were arrayed as the defendant nos.1 and 2 in Suit No.4/1980 filed by

the Delhi Waqf Board. The petitioners claim under their fathers and

therefore, can claim no better title than was asserted by their claimed

predecessors-in-interest. The adjudication on the claimed rights of

Mohd. Yusuf and Mohd. Yunus with regard to the subject property

would bind the review petitioners as well.

48. We therefore note the defence set up by Mohd. Yusuf and

Mohd. Yunus (as defendant nos.1 and 2 in Suit No.4/1980) set out in

para 3 of the order dated 6th October, 1981 which was to the following

effect :

“3. Defendant Nos. 1 and 2 filed reply of the application

moved by the plaintiff referred above and alleged that the

suit is time barred, that the plaintiff is not in possession of

the property; that defendant nos. 1 and 2 have no concern

with the alleged hoardings; that the application is mala fide


and baseless and, therefore, deserved to be rejected, it is

also alleged that it is not disputed that the property in suit

is a graveyard. The accuracy of the plan 'A' is denied. It is

denied that the property is suit was used a burial place

since terms immemorial; that the finding of the Wakf

Commissioner and the Gazettee Notification dated 21.12.70

in respect of the property in suit are not binding on

defendant nos. 1 and 2; and the said notification is void,

wrong, unjust, arbitrary and inaffective against the rights,

title and interest of defendants no. 1 and 2 in the property

possessed by them and hence the validity of the said

notification is denied; that defendant nos. 1 and 2 have no

concern with the hoardings of defendant no. 2 and it is

denied that the defendant nos. 1 and 2 assisted in any way to

defendant no. 3 who allowed some people to put up

hoardings in the suit property and that defendant nos. 1 and

2 have no concern with the alleged hoardings or its

income.”

(Emphasis supplied)

49. It is therefore, clear that Mohd. Yusuf and Mohd. Yunus never

set up any plea or claim that they were managers of a mosque or

dargahs nor claimed that they were mutawallis in the said property. In

fact, Mohd. Yusuf and Mohd. Yunus did not even set up any plea that

there was any construction in existence on the subject land, as has

been claimed by the review petitioners.

50. The other document relied upon by the appellant before us is a

photocopy of a document scribed in Urdu, the year whereof is not

legible. This document purports to have been executed by Mst.

Sayeda Begum wife of Abu-ul-Hassan. It claims that “she is the


descendent of Ali Ahmed Khwaja Abu Hasan” who had been offering

services at “mazaar sharif like cleaning, dusting up-keeping etc,” and

further assisting with arrangements of annual Urs. It is claimed that

this has been going on from the past many years and he had been

cultivating the land from the past 87 years.

51. By the said deed of Will, Mst. Sayeda Begum bequeathed “all

my property in favour of Mst. Qudarti Begum, who will be the sole

owner and in possession of all my immovable and movable properties

after my death”. This Will refers to “land to cultivate”. It is nobody’s

case before us that any cultivation is or was going on.

52. As per the alleged deed of Will, Mst. Sayeda Begum’s

predecessor was only offering services in the nature of cleaning,

dusting, up-keeping etc. and making arrangements for the annual Urs.

at Mazaar Sharif. Ali Ahmed Khwaja Abu Hasan had no interest, let

alone bequeathable right, title or interest in the land or property which

is the subject matter of the writ petition. The deed of Will wherefrom

Qudrati Begum derives her title, also does not make any reference to

her or her predecessor’s appointment as a mutawalli of the two

dargahs or mosque and the land in question. We have been kept

completely in dark as to how Mst. Sayeda Begum was the

“descendant” of Ali Ahmed Khwaja Abu Hasan or how she inherited

his estate. The deed of Will does not even disclose the relationship of

Mst. Sayeda Begum with the beneficiary Mst. Qudrati Begum. It

needs no elaboration that a person can bequeath only what right, title


or interest he actually holds. There is not an iota of title of the subject

land or the mosque or dargah in favour of Mst. Sayeda Begum. The

deed of Will relied upon by the appellant is not worth the paper on

which it is written.

53. Before us, Mr. U. Hazarika, ld. Senior Counsel for the review

petitioners has urged that a General Power of Attorney dated 20th

March, 1981 (registered on 12th October, 1982) was executed by one

Smt. Qudrati Begum, widow of Master Mastoo Fida Husain aged

about 85 years as its executant. By this General Power of Attorney,

Smt. Qudrati Begum appointed her daughter Smt. Rabia Khatoon;

sons Mohd. Yusuf and Mohd. Yunus as her attorneys. So far as the

authorisation was concerned, the executant Qudrati Begum authorised

the said attorneys to inter alia do the following acts in respect of

Dargah Chitli Khanka :

“GENERAL POWER OF ATTORNEY

xxx xxx xxx

...to do the following acts and things in regard to the Dargah

popularly known as Chitli Khangah and in regard to the land

and properties attached thereto and for the purposes of the said Dargah Chitli Khangah.

AND WHEREAS, the executants by virtue of her being the

Mutwalli/Sajjada Nashin of the aforesaid Dargah and

properties attached thereto in terms of the Will executed by

Late Saeeda, the mother of the executants herein, hereby

invest all her rights, title and interest in the said Dargah and

in the properties and land attached thereto to the said


attorneys to manage the said Dargah as before and also

manage and properties attached for the purposes of the said dargah in her name and on her behalf.

And Whereasm I, the and executants authorize the said

attorneys jointly and severally to settle lands with the tenants

and to grant lease and to collect rent and moneys under the

proper receipts and to do all acts and things which are

deemed necessary for the up keep and maintenance of the

said dargah.”

(Emphasis supplied)

54. Smt. Qudrati Begum claimed in this attorney that she was the

mutwalli/sajjada Nashin of the Dargah Chitli Khanka and the

properties attached thereto in terms of an alleged Will executed by

Late Saeeda, her mother.

55. The attorneys were authorised to do all acts and deeds including

signing or deeds of lease etc. qua the right, title and interest of the

executants in the said property.

56. The typed copy of the General Power of Attorney has been

placed before us is executed on a non-judicial stamp paper of the sum

of rupees ten only. The same is not even a notarized document, let

alone registered in accordance with law, given the powers which were

sought to be vested therein. Therefore, neither of the two documents,

i.e., the aforesaid Will and the General Power of Attorney have any

sanctity in law.

57. Yet another important document has been placed before us


which again establishes that the Delhi Wakf Board has been

continuously decrying the action of the encroachers on the land. It

appears that a notice dated 27th

December, 2005 was issued by the

Chief Executive Officer of the Delhi Wakf Board referring to misuser

of land; induction of encroachers as well as unauthorised construction

by Shamim Begum/Qaisar Jahan claiming to be both wives of Late

Mohd. Yunus. These two ladies had sent a reply dated 3rd

January,

2006 to the Delhi Wakf Board which has been placed before us. Even

in this typed copy of the reply, it is stated as follows :

"...By virtue of a General Power of Attorney dated

20.3.1981 executed by late Smt. Qudrati Begum, mother in

law of the undersigned, late Mohd. Yusuf, the husband of

the undersigned had become the Mutwalli/Sajjadanashin of

the aforesaid Dargah. It is submitted that after the death of

the abovesaid Mohd Yusuf the undersigned alongwith all

other legal heirs including the second wife of the above said

Mohd. Yusuf named Smt. Qaisar Jahan are staying together

in the Dargah and performing the same duty as my husband

was performing i.e. the maintenance of the Dargah."

(Emphasis by us)

58. We have dealt with the General Power of Attorney dated 20th

March, 1981 hereinabove and the legal impact thereof. There is no

claim at all that Mohd. Yusuf was the mutawalli of the dargah. In

fact, though the notice has not been placed before us but the tenor of

the notice clearly refers to the falsity of the claim of Mohd. Yusuf and


the heirs and his successors after his death.

59. The review petitioners have placed before us the notification

dated 31st December, 1970 issued by the Delhi Administration which

we have extracted above. The subject property has been described at

Sr.No.1078 referring to the “Dargah Shah Firdaus, Dargah Musafir

Shah with a wall type mosque.” There is no reference at all to any

Dargah Chitli Khangah. Furthermore, the Government notification

which is relied upon by the review petitioner describes the Delhi

Wakf Board as the mutawalli of the wakf.

60. It is evident that neither Mohd. Yusuf nor Mohd. Yunus nor the

applicants set up any specific plea of appointment of any ancestor as a

mutawalli. No plea of customary vesting has been set up anywhere

nor particulars thereof have been given. Even in the Will or General

Power of Attorney, Smt. Qudrati Begum claims to be undertaking

merely cleaning, dusting, up-keeping etc. at Mazaar Sharif and further

arrangements for annual Urs. and claims to be “cultivating land”.

Doing sewa or service or charity does not create any right, title or

interest in a place of worship or a monument or a permanent structure.

61. The intent of the applicants is writ large on the face of the

record and the documents placed before us. By virtue of the alleged

General Power of Attorney, the review petitioner fraudulently claimed

that their predecessors-in-interest were conferred the power to execute

the lease deed, etc. that is to say, were authorized to rent out the

property which is the subject matter of the writ petition. The recitals


in the alleged General Power of Attorney and the powers vested

therein, in fact manifest a calculated fraud to grab the public land.

62. The review petitioners have not pleaded any customary

appointment of any ancestor or their predecessor-in-interest as a

mutawalli of the wakf. There is not a whisper of a pleading even, let

alone deed or instrument, whereby any ancestor or the predecessor-in-

interest of the review petitioner’s father was appointed as a mutawalli.

Clearly, no ancestor or predecessor in interest of the review petitioners

was a “mutawali” within the meaning of expression in Section 3 of the

Wakf Act, 1954. The review petitioners can also claim no such

entitlement or appointment or rights as a result thereof.

Complaint regarding encroachments on subject property

63. Several complaints are on record including complaints by the

Jamia Arbia Nizamia Welfare Educational Society dated 27th July,

2015 and 24th

August, 2015 regarding encroachments stating that the

Amir Khusro Park, containing the dargahs and the wall mosque was

previously a graveyard and that it was managed by the Delhi Wakf

Board; that the South Delhi Municipal Corporation had constructed a

Rain Basera in the year 2012 for temporary purpose; that under its

shield, illegal activities had become rampant in the area and illegal

jhuggis and encroachments being constructed.

64. In CM No.18177/2016, also a complaint stands made that

encroachments and illegal activities have come up over the Amir


Khusro Park and a direction was sought to the respondents to take

appropriate actions against them. The applicant in the said application

also specifically refers to the illegal efforts to convert a 500 year old

monument into private residences by the encroachers.

65. It is noteworthy that the trial court order dated 6th

October, 1981

in Suit No.4/1980 also notes that one Shafiq Mia had brought Suit

No.45/1971 on 29th October, 1971 to the effect that he was a

Mutawalli of Dargah Firdaus Ali Shah (marked ‘E’) claiming

ownership of residential portion (a room) and the open land shown on

the plan. By way of this suit, Shafiq Mia was claiming that the

gazette notifications were invalid. So far as Shafiq Mia is concerned,

his suit, based on such claims stands dismissed on 18th November,

1972. The notification dated 10th December, 1970 has become final

under the provisions of Sections 6 of the Wakf Act, 1954.

Removal of encroachments

66. The review petitioners have placed before us a copy of an

affidavit dated, 7th

October, 2010, filed by the Delhi Waqf Board in

another writ petition being W.P.(C)No.3927/2010, Jamia Arabia

Nijamia Welfare Educational Society v. Delhi Wakf Board & Ors.

This affidavit has been sworn by Md. Ali Ashraf, Chief Executive

Officer, Delhi Wakf Board. We extract hereunder the relevant

portions of this affidavit inasmuch as it sets out the stand of the Wakf

Board and the directions regarding removal of encroachments in paras


6 and 8 :

“6. That the Delhi Wakf Board initiated steps for

removal of encroachments in accordance with Section 54

of Wakf Act, 1995. As a result of which a contempt petition

No.503/07 was filed, wherein order dated 1.9.08 was passed

by Hon’ble Mr. Justice S.N. Dhingra, directing the Delhi

Wakf Board that within 60 days of proceedings qua

eviction in respect of Delhi Wakf Board shall be completed

and necessary orders shall be passed which shall further

be sent to the SDM.

xxx xxx xxx

8. That Delhi Wakf Board is bound by the directions

issued by this Hon’ble Court Delhi Wakf Board is

custodian of Wakf properties and duty bound to remove

encroachment from such Wakf properties. In view of the

aforesaid, it is prayed that the respondent will comply

directions issued by this Hon’ble Court, in view of the

disposal of the aforesaid writ petition.”

(Emphasis by us)

67. CM No.18177/2016 has been filed by Jamia Arbia Nizamia

Welfare Educational Society for impleadment before us. Alongwith

the application, the said applicant has placed a response dated 2nd

September, 2015, issued by the Delhi Wakf Board to it, stating that

the Managing Committee duly constituted by the Delhi Wakf Board is

managing the affairs of the graveyard “tikona kabristan”.


Do the review petitioners establish that they are actually occupying

the land? Do the review petitioners make out a legal right to

continue to remain in possession? If so, can mere occupancy of

another’s property be legally protected?

68. In support of the occupancy of the Dargah Chitli Khangah, the

review petitioners rely on a death certificate of Mohd. Yusuf dated

19th May, 2003; a receipt dated 25

th March, 2003 of installation of an

electricity connection and election cards.

69. Reliance is placed on Aadhar Card and Election Commission

Card dated 15th December, 1995; ration card and passports.

70. These documents would not establish right, title or interest in

immovable property. They do not establish a legal right with regard

to the subject property.

71. We are compelled to observe that even it could be held that the

documents in the nature of election card, ration card or passport could

suggest presence of the review petitioner on the spot, their presence

on the spot would not ipso facto entitle them to legal protection by

virtue thereof.

72. It is trite that every occupancy by itself also does not create

either any title or a right to remain in possession. It is only if the entry

into possession of the property was lawful, that there is a legal right to

remain in possession; or, if a person is in settled possession that the

court would grant the equitable relief of injunction to him against

forcible dispossession. A person in settled possession can be


dispossessed only after due process of law. It has been held that in

certain cases, a person can be evicted by use of reasonable force, in

others, by due process of law.

73. In this regard, reference may be made to the pronouncement

rendered by one of us (Gita Mittal, J.) reported at ILR (2012) 3 Del

247 Institute of Human Behaviour and Allied Sciences v. Govt. of

NCT of Delhi wherein it was held thus:

“92. xxx In this regard, the following principles were laid

down by the Supreme Court in the judgment reported at

(2004) 1 SCC 769 Rame Gowda (D) by Lrs. v. M.

Varadappa Naidu (D) by Lrs

“10. It is thus clear that so far as the Indian law is

concerned the person in peaceful possession is

entitled to retain his possession and in order to

protect such possession he may even use reasonable

force to keep out a trespasser. A rightful owner who

has been wrongfully dispossessed of land may retake

possession if be can do so peacefully and without the

use of unreasonable force. If the trespasser is in

settled possession of the property belonging to the

rightful owner, the rightful owner shall have to take

recourse to law; he cannot take the law in his own

hands and evict the trespasser or interfere with his

possession. The law will come to the aid of a person

in peaceful and settled possession by injuncting even

a rightful owner from using force or taking law in his

own hands, and also by restoring him in possession

even from the rightful owner (of course subject to the

law of limitation), if the latter has dispossessed the

prior possessor by use of force. In the absence of

proof of better title, possession or prior peaceful

settled possession is itself evidence of title. Law


presumes the possession to go with the title unless

rebutted. The owner of any property may prevent

even by using reasonable force a trespasser from an

attempted trespass, when it is in the process of being

committed, or is of a flimsy character, or recurring,

intermittent, stray or casual in nature, or has just

been committed, while the rightful owner did not have

enough time to have recourse to law. In the last of the

cases, the possession of the trespasser, just entered

into would not be called as one acquiesced to by the

true owner.

11. It is the settled possession or effective possession

of a person without title which would entitle him to

protect his possession even as against the true

owner. The concept of settled possession and the right

of the possessor to protect his possession against the

owner has come to be settled by a catena of decisions.

Illustratively, we may refer to Munshi Ram v. Delhi

Administration -: 1968 Cri LJ 806, Puran

Singh v. The State of Punjab -: (1975) 4 SCC 518 :

AIR 1975 SC 1674 and Ram Rattan v. State of Uttar

Pradesh -: 1977 CHLJ 433. The authorities need not

be multiplied. In Munshi Ram's case (supra), it was

held that no one, including the true owner, has a

right to dispossess the trespasser by force if the

trespasser is in settled possession of the land and in

such a case unless he is evicted in the due course of

law, he is, entitled to defend his possession even

against the rightful owner. But merely stray or even

intermittent acts of trespass do not give such a right

against the true owner. The possession which a

trespasser is entitled to defend against the rightful

owner must be settled possession, extending over a

sufficiently long period of time and acquiesced to by

the true owner. A casual act of possession would not


have the effect of interrupting the possession of the

rightful owner. The rightful owner may re-enter and

re-instate himself provided he does not use more

force than is necessary. Such entry will be viewed

only as resistance to an intrusion upon his

possession which has never been lost. A stray act of

trespass, or a possession which has not matured into

settled possession, can be obstructed or removed by

the true owner even by using necessary

force. In Puran Singh's case (supra), the Court

clarified that it is difficult to lay down any hard and

fast rule as to when the possession of a trespasser

can mature into settled possession. The ‘settled

possession’ must be (i) effective, (ii) undisturbed,

and (iii) to the knowledge of the owner or without

any attempt at concealment by the trespasser. The

phrase settled possession does not carry any special

charm or magic in it nor is it a ritualistic formula

which can be confined in a strait-jacket. An

occupation of the property by a person as an agent or

a servant acting at the instance of the owner will not

amount to actual physical possession. The court laid

down the following tests which may be adopted as a

working rule for determining the attributes of ‘settled

possession’:

i) that the trespasser must be in actual physical

possession of the property over a sufficiently long

period;

ii) that the possession must be to

the knowledge (either express or implied) of the

owner or without any attempt at concealment by

the trespasser and which contains an element

of animus possidendi. The nature of possession of

the trespasser would, however, be a matter to be


decided on the facts and circumstances of each

case;

iii) the process of dispossession of the true owner by

the trespasser must be complete and final and

must be acquiesced to by the true owner; and

iv) that one of the usual tests to determine the quality

of settled possession, in the case of culturable

land would be whether or not the trespasser, after

having taken possession, had grown any crop. If

the crop had been grown by the trespasser, then

even the true owner has no right to destroy the

crop grown by the trespasser and take forcible

possession.

12. In the cases of Munshi Ram (supra) and Puran

Singh (supra), the Court has approved the statement

of law made in lloram v. Rex -: AIR 1949 All 564,

wherein a distinction was drawn between the

trespasser in the process of acquiring possession and

the trespasser who had already accomplished or

completed his possession wherein the true owner may

be treated to have acquiesced in: while the former can

be obstructed and turned out by the true owner even

by using reasonable force, the later, may be

dispossessed by the true owner only by having

recourse to the due process of law for reacquiring

possession over his property.”

93. A Full Bench of this court was considering a claim by

the petitioner for permanent injunction restraining the

municipal corporation from interfering or disturbing him

from a kiosk which was allotted to him in an auction on a

licence in AIR 1978 Delhi 174Chandu Lal v. Municipal

Corporation of Delhi. On the issue of the rights of the

corporation to take possession of the kiosk after termination


of the licence, the Full Bench of court has observed as

follows:—

“25. …….After the termination of the license, the

licensor is entitled to deal with the property as he

likes. This right he gets as an owner in possession of

his property. He need not secure a decree of the Court

to obtain this right. He is entitled to resist in defense

of his property the attempts of a trespasser to code

upon his property by exerting the necessary and

reasonable force to expel a trespasser. If, however,

the licensor uses excessive force, he may make himself

liable to be punished under a prosecution, but he will

infringe no right of the licensee. No doubt a person in

exclusive possession of the property is prima facie to

be considered to be a tenant, nevertheless he would

not be held to be so if the circumstances negative any

intention to create a tenancy.”

94. Light on this issue is thrown on the above issue also by

the observations of the Supreme Court while examining the

claim by a person in exercise of right of private defence of

property under sections 96, 97, 100 and 101 of the Indian

Penal Code, 1860. In this regard, the following principles

laid down by the Supreme Court in (2005) 12 SCC

657Bishna alias Bhiswadeb Mahato v. State of West

Bengal:—

“85. Private defence can be used to ward off unlawful

force, to prevent unlawful force, to avoid unlawful

detention and to escape from such detention. So far as

defence of land against trespasser is concerned, a

person is entitled to use necessary and moderate force

both for preventing the trespass or to eject the

trespasser. For the said purposes, the use of force

must be the minimum necessary or reasonably

believed to be necessary. A reasonable defence would


mean a proportionate defence. Ordinarily, a

trespasser would be first asked to leave and if the

trespasser fights back, a reasonable force can be

used.”

95. It is trite, therefore, that mere occupation of another's

property simplicitor could not entitle a person to an

injunction against dispossession.”

74. Challenge to the above pronouncement was taken upto the

Supreme Court of India vide SLP(C) No. 35355-35356/2014, which

was rejected. Review Petitions thereto being R.P. Nos. 860-861/2015

stood dismissed on 25th

March, 2015.

75. The present review petitioners have not only flagrantly violated

the series of orders of this court in all the above writ petitions but also

the law laid down by the Supreme Court.

76. So far as open land is concerned, a presumption of possession is

always deemed to be of the owner. In this regard, reference may

usefully be made to a pronouncement of the Gujarat High Court

reported at AIR 1998 Gujarat 17 Navalram Laxmidas

Devmurari v. Vijayaben Jayvantbhai Chavda. In this case, the

Gujarat High Court was considering a claim by the respondent for

declaration of title to the suit property and injunction directing the

appellant to remove a water tank, shed etc constructed over the same.

The respondent had set up a plea that only one of the shops

constructed on plot of land, which belonged to her husband, had been


let out to the appellant. The open plot of land was in her possession

and the appellant was not entitled to make use of any other part of the

plot. The respondent had filed the suit making a grievance that despite

this fact, the appellant had constructed a roof in front of the rented

shop constructed a water tank and shed for keeping a motor pump to

be used for the purpose of drawing water in the suit land and damaged

the compound wall, without her knowledge and consent. A prayer was

made in the suit seeking declaration and injunction that the appellant

had no right to use or enter into the suit land except the house and

shop let out to him. The respondent had also sought an injunction

directing the appellant to remove the illegal constructions made by

him over the suit land and claimed a permanent injunction restraining

the appellant from disturbing the respondent (plaintiff) from using the

suit land. The appellant/defendant had also set up a prohibition under

Section 34 of the Specific Relief Act and contended that the suit for

declaration simplicitor without seeking the relief of possession was

not maintainable. This suit was decreed by the trial court.

77. The valuable observations and findings of the court deserve to

be considered in some detail and are being reproduced in extenso

hereafter :

“11. The concept of possession is an abstract one. The

ordinary presumption is that possession follows

title. Presumption of possession over an open land

always is deemed to be that of the owner and not of a

trespasser. An open place of land shall be presumed


to be in possession of the owner unless it is proved by

the trespasser that he had done some substantial acts

of possession over the land which may excite the

attention of the owner that he has been dispossessed.

As indicated above, an owner of an open land is

ordinarily presumed to be in possession of it and this

presumption becomes strong in his favour when the

defendant fails to establish the ground on which he

claims to have come in possession.

The presumption that possession goes with the title is

not limited to particular kind of cases where proof of

actual possession is impossible on account of nature

of the land, such as boundary land, forest land or

submerged land. The presumption applies to all kinds

of lands. Where plaintiff proves his title, but not

any act of possession and the defendant does not

prove possession except unnoticed user of small part

of land, the presumption that possession follows title

will come into play.

12. …… As the appellant has miserably failed to

establish the ground on which he claims to have come

in possession of the disputed land, I am of the view

that presumption that possession follows title will

come into play. Except construction of water tank and

shed over the open land and construction of roof in

front of the shop the appellant has not done any

substantial acts of possession over the land which

may excite the attention of the respondent that she has

been dispossessed. It may be mentioned that the

construction is over a small piece of land which

totally admeasures 995-1 sq. yds. The small piece of

land over which the construction was made, was of no

present use to the respondent and being convenient in

many ways to the appellant, the latter had made use of


it in various ways without notice of the respondent.

Such user as this, cannot be construed as an act of

dispossession of the respondent. User of this sort

under similar circumstances is common in this

country and excites no particular attention. It is

neither intended to denote or understand as denying

on one side or the other a claim to dispossession of

the land. Whether such user amounts to

dispossession or not has been considered by the

Court in the case of State of Gujarat v. Patel

Chhotabhai Bhaijibhai. In the said case, the land

belonged to the Government. The respondent had

been tethering cattle for more than 60 years. It was

pleaded by the respondent that he had become owner

of the land by adverse possession, as he was using the

same for tethering cattle. After making reference to

the case of Framji Cursetji v. Goculdas MadhowjiILR

(1992) 16 Bom 338, the Court has held that evidence

to show user of the site by tethering cattle for more

than 60 years would not constitute possession. Again,

in the case of Memon Mohmed Ismail Haji (supra),

the plaintiff had filed suit for mandatory injunction for

removal of the foundation dug by the plaintiff and for

prohibitory injunction restraining the defendant from

doing any construction on the suit land. The plaintiff

had all along asserted that possession of the open

land was with him. The injunction prohibiting

defendant from entering into the land was also sought.

The suit was dismissed by Trial Court as well as first

Appellate Court. It was found that the disputed

property therein was an open land where some

construction material had been placed and not only

foundations were dug, but construction work was also

being done. It was noticed that the first Appellate

Court had negatived claim of the defendant that they


were in legal possession of the land, as they were

using part of it for the purpose of drying saries.

However, the first Appellate Court had treated act of

drying saris as an act of dispossession of the plaintiff.

The High Court has held that all along the defendant

used open land as any neighbour could use for drying

saris and if the plaintiff's suit was on the allegation

that neighbours were now committing acts of waste of

his property by digging foundation and they be

restrained from doing so, the averments in the plaint

could never be treated as averments of the plaintiff

having been dispossessed. While allowing the Second

Appeal the Court has observed as under:—

“The plaintiff all along asserted that possession

of the open plot was with him as he was a title

holder. He even never sought any declaration

of his title and claimed only an injunction

because such open plot would always be in his

possession as a title holder. The defendant tried

to assert adverse title to this open land and he

failed. Therefore, the defendant had no

possession whatever of this open land. Even on

his own showing, at the date of the suit he was

found only to have started doing waste of the

plaintiff's property. The neighbour may not

object so long as the user was of drying Saris

on this land. A neighbour is surely entitled to

object when his land is sought to be wasted and

such adverse claim is sought to he asserted on

the suit land. Therefore, the relevant

injunctions were claimed against

these trespassers on the footing that the plaintiff

had remained in possession of this open land

and the defendant-trespasser who was only

trying to commit waste should be prevented


from committing such waste, by removing

whatever he had done and that he should be

restrained from entering in this land. Therefore,

the averments were consistent with his being in

possession of the land and the defendant-

trespasser being completely out of possession.

These allegations were completely misread by

the Lower Appellate Court and contrary to its

own finding that drying of saris would not

amount to legal possession, it has recorded a

perverse finding that this trespasser was in

possession and on that ground, the plaintiff has

been non-suited.”

13. From the principle laid down in the above-quoted

decision, it is evident that mere user of part of the

open land would not amount to dispossession of the

owner and owner is entitled to object when the

property is sought to be wasted and or when adverse

claim is sought to be asserted with reference to the

open land. In the case of Framji Curseti (supra) in

addition to tethering cattle some construction had

also been made. But, inspite of that it was held that

the user by tethering cattle and the construction of a

temporary structure would not amount to possession

in case of open land.

14. At this stage it would be advantageous to notice

another unreported judgment rendered in Special

Civil Application No. 390/84 by M.B. Shah. J. (as he

then was) on 2/5/6-3-85. Therein the petitioner had

filed H.R.P. Suit before the Small Causes Court at

Ahmedabad for a declaration that he was tenant of the

suit land. He had also prayed for a permanent

injunction. During the pendency of suit, an


application Exh. 5 was filed by him claiming

temporary injunction. The declaration and permanent

injunction were claimed on the ground that he was

tenant in possession of land admeasuring 1300 sq.

yds. out of final plot No. 1099 at Naranpura and had

not only constructed kachcha shed on it, but was also

keeping cattle, manure and other articles in the

land. The Small Causes Court found that the

petitioner did not prove prima facie case and was not

tenant of house along with open piece of land

admeasuring 1300 sq. yds. In that view of the matter,

the Small Causes Court rejected application Exh, 5.

Thereupon the petitioner preferred an appeal before

the Appellate Bench of the Small Causes Court. After

appreciation of evidence, the Appellate Bench

dismissed the appeal. The petitioner, therefore,

approached High Court by way of filing petition

under Article 227 of the Constitution of India. The

High Court considered the question whether the

petitioner could be said to be in possession of the land

in dispute merely because he was tethering cattle,

storing cow dung over some part of the land and that

some kachcha shed of 9′ × 9′ was constructed by him

over the land. After making reference to the cases of

(i) State v. Chhotabhai (supra) and Framji

Cursetji (supra), it is held as under:—

“In the present case also, there is

no evidence on record to show that the

petitioner is in exclusive possession of the land

in dispute, this type of” casual unnoticed user

of open piece of land cannot be considered as

exclusive possession of the land and

conferring right over the land in the person

using it. It is an admitted fact that the

respondent is the owner of land and the


doctrine that possession follows title requires

to be applied, as it is vacant land. The

panchnama clearly shows that on the three

sides of the land there is fencing and this also

indicates that the respondent is in possession of

the land.

So taking into consideration the fact that the

petitioner has failed to prove his prima-facie

right, title or interest over the land in dispute or

even exclusive possession of the land, the

learned judge has rightly not granted injunction

as prayed for by the plaintiff.”

From the principle of law enunciated in the

above quoted case, it is evident that casual

unnoticed user of open piece of land cannot be

considered as exclusive possession of the land

and conferring right over the land in the

person using it.”

(Emphasis supplied)

For the above reason as well, the trespassers in the present case

cannot be protected.

78. In view of the above narration, it is apparent that the review

petitioner has set up a claim in the Special Leave Petition which was

completely contrary to the claim which was set up by his

predecessors-in-interest in Suit No.4/1980; the stand of his alleged

predecessors-in-interest in the purported Will as well as the General

Power of Attorney. The applicant is unable to even remotely establish

that his predecessors-in-interest were mutawallis in respect of the


Dargah Shah Firdaus, Dargah Musafir Shah with a wall type mosque

which is the subject matter of the notification of 1970 of the Delhi

Government. The petitioner has failed to even remotely supplement

the pleas set up by him in CM No.18595/2017 for impleadment and

CM No.18596/2017 for deferring the demolition. In fact, as noted by

us in para 7 of the order dated 24th May, 2017, the plea set up before

the Supreme Court is completely contrary to the pleas set up in the

Will of 1980; General Power of Attorney of 1981 as well as in the

application before us.

79. We may also note that the petitioners have claimed the

occupancy for hundreds of years through their predecessors-in-

interest. The documents placed before us would show that the

electricity connection was installed for the first time in the year 2003.

There is no receipt regarding the installation or availability of any

sewage connection on the subject land.

80. In fact, the plea of Mohd. Yusuf and Mohd. Yunus of the

predecessor-in-interest in the Suit no.4/1980, Delhi Wakf Board v.

Mohd. Yunus & Ors. belies the plea that the review petitioner have set

up before us.

81. It is also important to note that as per the notification dated 31st

December, 1970 relied upon by the respondents, the land in question

could be used only for the object of “burial of the dead”. As per the

review petitioners as well as the status reports of the authorities on

record and the information noted by us in our orders, this land stands


misused for rampant commercial usage.

82. The review petitioners have therefore, miserably failed to

establish existence of old residential structures or possession thereof

by their ancestors. On the contrary, they have established attempt to

trespass and illegal usage of the land in question. They have failed to

establish any entitlement to interim directions.

83. The writ petitioner contends that it is a public park owned by

the Delhi Development Authority (respondent no.2 herein) which is

known as the Amir Khusro Park.

84. Para 75

85. The Delhi Development Authority - respondent no.2 has filed a

status report dated 30th

May, 2017 contending that, vide letter

no.L&DO/L-IIA/RTI/2012/105/257, the Ministry of Urban

Development, through the Land and Development Office, had

declared that the triangular park was allotted by it to the Delhi

Development Authority in the year 1972 to be maintained as Green.

86. According to the Delhi Development Authority, the statutory

mandate of the Master plan has to be strictly complied with and no

new structure can be protected or saved thereunder which are

apparently non-conforming. It is further contended that the illegal

new structures stand constructed with ulterior motives adjacent to old

structures giving them the facade of merging with the old structures so

as to give them the appearance of being old structures, which cannot

be protected. This position is not contested by the Delhi Wakf Board


as well. Whatever be the parties stand, it cannot be disputed that the

law has to be complied with.

87. So far as the structures which are ancient or old, which have to

be protected, are concerned the notification of 1970 establishes the

existence of Dargah Shah Firdaus, Dargah Musafir Shah and a wall

type mosque. The Delhi Wakf Board also maintains the same

position. Therefore, these are the only old structures on the land in

question.

88. In the case in hand, both the Delhi Development Authority as

well as Delhi Wakf Board are staunchly contesting the claim of the

applicant and have urged that they are rank encroachers who are

trying to crystallize a legal claim on the property.

89. While the Delhi Development Authority has asserted its

entitlement, it is not disputed that the property has to be maintained as

a green area.

90. Delhi Wakf Board has asserted that the land was a Muslim

graveyard and that it had the structures of two graveyards, namely,

Dargah Shah Firdaus, Dargah Musafir Shah with a wall type mosque.

The review petitioners claim several structures wherein they claim to

have been residing. The claim on such residences structures is not

supported by any document in the nature of the Government

notifications extracted above or Government records. There is no

evidence to establish existence of such structures.

91. We make it clear that we shall consider the issue of vesting of


land and title in the DDA or the Delhi Waqf Board separately in the

writ petition. The same is not relevant for the present petition as all

parties are agreed that the above old structures have to be preserved

and the land has to be maintained as a green. All the authorities have

complained of rampant encroachments. Orders of the Division Bench

for removal of the unauthorized encroachments and developments

have remained uncomplied with for years together. The police has

complained of strong resistance. These orders have obtained finality.

They bind this court. They certainly not only bind but have to be

complied with by the respondents as well as the review petitioners.

92. It is also noteworthy that the Will and the General Power of

Attorney from which the review petitioner is deriving right and

interest referred to Dargah Chitli Khanka whereas in the Supreme

Court order dated 19th May, 2017, the petitioner has referred to Masjid

and Dargah Musafir Shah. The notification of 1970 refers to a “wall

type mosque”. The review petitioner therefore, has no locus standi to

intervene in the present writ petition and has no legal right to remain

in occupation of any portion of the tikona graveyard park also known

as Amir Khusro Park.

93. We may also usefully refer to the status report dated 22nd

May

2017 filed by the Delhi Development Authority wherein it has been

stated that the Delhi Development Authority has removed illegal and

unauthorized encroachments including jhuggis (shanties), kabaris,

illegal constructions etc. at the Amir Khusro Park and that the


structure in the nature of masjid. In the status report, it has been

stated that old structures in the nature of dargah, masjid and few

scattered graves (unmarked) would not be demolished.

Illegal actions of the respondents which are causing irreparable loss

and damage not only to the environment of the Amir Khusro Park

but creating dangerous consequences and imperilling the life and

liberty of the other residents in the city and visitors to the area

94. There are other extremely monuments in the immediate vicinity

of the Tikona Park/Amir Khusro Park. The park is bound by the

Lodhi Road as well as Lala Lajpat Rai Marg (earlier known as the

Link Road) while the Mathura Road connects the traffic coming from

Agra to the rest of the Delhi. Lala Lajpat Rai Marg is the only

connection between the South Delhi and the rest of the Delhi. The

Lodhi Road connects the entire area to the Link Road near the All

India Institute of Medical Sciences going towards Gurgaon as well as

on to the Ring Road. These arterial roads are therefore, the major

lifelines and circulation areas and at any point of time bear extremely

heavy traffic.

95. Inspector Ved Prakash, the then SHO, PS Hazrat Nizamuddin

in his status report dated 17th

October, 2015 had stated as follows :

“It is most respectfully and humbly submitted that vide

this petition, the petitioner has raised issues regarding

encroachment of land and establishment of jhuggies in the

area of Khusro Park. Petitioner has further raised various

issues including that the said park is within the 100 meters of


the Archaeological Survey of India’s historical monument

known as Sabz Burl (Neela Gumbad) and including people

used to bath and urinate in the open.

In this regard, it is submitted that the said land

opposite to Basti Hazrat Nizamuddin is lying vacant and

popularly known as Khusro Park.

On the said land, few years back, initially a Rain

Basera was built by Shakti Shalini NGO to provide shelter

for female and children. Around 300-400 people who were

either beggars, homeless and vagabond also started taking

shelter in Khusro Park and their numbers stated increasing.

They started living there by way of putting temporary

structures with the help of tarpaulin.

On 30.03.2013 at around 10 AM, DDA Horticulture

staff came over to police station for police assistance in

removing encroachment in Khusro Park in the shape of

temporary shelters, made by some persons. Police staff along with horticulture staff of DDA went to Khusro Park

and horticulture staff removed the encroachment in Khusro

Park. While encroachment was being removed, some

miscreants with a view to create mischief, burnt wastes etc.

The said issue was also highlighted in Writ Petition

No.29 of 2010 in the matter of Court on its own motion vs.

State of NCT of Delhi & Ors.

Time to time efforts were made to stop the

encroachments at our own, but due to strong protest of

residents, no fruitful result came out as they put forward

their females and also throw children in front of the police

party and level all kind of false allegations against the

police party. Permanent picket was also deployed at the


said site.”

(Emphasis by us)

96. The respondents do not mention existence of any sewage or

sanitation facilities on the land in question. No toilets are referred to.

As a result, if habitation is permitted in this park there would be huge

issues of garbage as well urination & defecation in the open area, if

people are permitted to reside therein.

97. In WP(C)No.8917/2015 Gauri Grover vs. Government of NCT

of Delhi and WP(C)No.9006/2015 Arpit Bhargava vs. GNCT of

Delhi through its Chief Secretary & Ors., this court is faced with the

huge menace of mosquitoes in Delhi, i.e., disease bearing vectors.

Already extreme cases of dengue and chikanguniya have surfaced.

Both these diseases are proved to be fatal and in the past have resulted

in tremendous fatalities.

98. The park, which is the subject of the writ petition, is in close

proximity, on the one side to the school providing education to

thousands of people and on the other side, by hotel.

99. In an order dated 2nd

June, 2017 passed in WP(C)No.8917/2015

Gauri Grover vs. Government of NCT of Delhi and

WP(C)No.9006/2015 Arpit Bhargava vs. GNCT of Delhi through its

Chief Secretary & Ors., we have noted the imperative requirement of

accommodating the right to health, clean air and environment of the

residents of Delhi, an essential part of Right to Life under Article 21

of the Constitution of India and observed that this right cannot be


compromised when consideration of the right to shelter comes up. In

this regard, we have also noted the concerns of the Supreme Court of

India regarding the situation in Delhi in the judgments, relevant

portions whereof are reproduced thus:

(i) Subhash Kumar vs. State of Bihar : (1991) 1 SCC 598:

“7.......Right to live is a fundamental right under Article 21

of the Constitution and it includes the right of enjoyment

of pollution-free water and air for full enjoyment of live. If

anything endangers or impairs that quality of life in

derogation of laws, a citizen has right to have recourse to

Article 32 of the Constitution for removing the pollution of

water or air which may be detrimental to the quality of

life......”

(Emphasis Supplied)

(ii) M.C. Mehta vs. Union of India: (1992) 3 SCC 256:

“2. We are conscious that environmental changes are the

inevitable consequence of industrial development in our

country, but at the same time the quality of environment

cannot be permitted to be damaged by polluting the air,

water and land such as extent that it becomes a health

hazard for the residents of the area. We are constrained to

record that Delhi Development Authority, Municipal

Corporation of Delhi, Central Pollution Control Board and

Delhi Pollution Control Committee have been wholly remiss

in the performance of their statutory duties and have failed

to protect the environments and control air pollution in the

Union territory of Delhi. Utter disregard to environment

has placed Delhi in an unenviable position of being the

world’s third grubbiest, most polluted and unhealthy city

as per a staudy conducted b the World Health

Organisation. Needless to say that every citizen has a right


to fresh air and to live in pollution-free environment. ”

(Emphasis Supplied)

(iii)M.C. Mehta vs. Union of India: (2004) 12 SCC 118:

“10. The natural sources of air, water and soil cannot be

utilised if the utilisation results in irreversible damage to

environment. There has been accelerated degradation of

environment primarily on account of lack of effective

enforcement of environmental laws and non-compliance of

the statutory norms. This Court has repeatedly said that

the right to live is a fundamental right under Article 21 of

the Constitution and it includes the right to enjoyment of

pollution-free water and air for full enjoyment of life.”

(Emphasis Supplied)

(iv) Arjun Gopal vs. Union of India: (2017) 1 SCC 412:

“10. When we refer to these extreme effects, we are not

merely referring to the inconvenience caused to people, but

to abject deprivation of a range of constitutionally

embedded rights that the residents of NCR ought to have

enjoyed. Needless to state, the grim situation of air quality

adversely affected the right to education, work, health and

ultimately, the right to life of the citizens, and this Court is

constitutionally bound to address their grave concerns. May we remind ourselves, that this is not the first time that

this Court was impelled into ensuring clean air for the

citizens of the capital region.”

(Emphasis Supplied)


(v) M.C. Mehta vs. Union of India (UOI) and Ors.: (2004) 6

SCC 288:

“14. It is also necessary to note as to what stand from time

to time the Ministry of Urban Development has taken on the

aspect of in situ regularisation. In an affidavit dated 4-12-

2000 filed by its Deputy Secretary, reliance has been placed

by the Ministry upon the statement made by its Minister on

the floor of the House on 24-11-2000. In that statement,

opposing regularisation, the Minister said as to what Delhi

we want to live in, what type of legacy do we wish to

bequeath to posterity and to our children and

grandchildren; do we want our city to become a junkyard

of unauthorised constructions, mirroring civic and moral

chaos, or an orderly and disciplined capital of a resurgent

republic, embodying values of justice and honesty on the

basis of which we have often claimed a pre-eminent

position for our culture and civilisation. The statement

further gave facts and figures that 50 million gallons per

day of industrial waste is going into the Yamuna and said

that what is seen flowing in it today is nothing but sewage

and industrial waste. In Okhla alone, for instance, during

March-April 2000, the biochemical oxygen demand (BOD)

level in the river was about 70 mg per litre as against a

standard of 3 mg per litre i.e. 25 times more than the

permissible level. An apprehension was expressed that if the

present attitudes and practices persist, Delhi would run the

risk of having as many as 30 million people in the next few

years and becoming an ugly, unhealthy, unworkable and

unliveable city. In the process, a fatal blow would also be

dealt to the development of the National Capital Region

which comprises a substantial part of three important

neighbouring States of Haryana, Rajasthan and Uttar

Pradesh. The affidavit states that in case of large number of


residential colonies, with so-called 70% concentration of

industries of which the entire land use is sought to be

changed from residential to industrial, should the master

plan be amended to destroy its very soul and structure or

subvert the basic norms of health, habitation and

environment or reward the illegal establisher of industries

and in the process penalise the law-abiding residents and

condemn them to stay forever in industrial areas or force

them to abandon their houses built with hard-earned

income? It also states that no one has made it clear where

the residents would be taken, what would the cost of

resettlement be, who will bear it and how would the layouts

and pattern of services and infrastructure, meant for

residential colonies, be adjusted to the requirements of

industries and consequent traffic and transport that would

flow not only in the colonies in question but also in their

neighbourhood.”

(Emphasis Supplied)

100. No court can permit the lives of the lawful residents in the

surrounding areas, as well as of the visitors to these monuments which

are of international repute, to be imperilled. It is our constitutional

duty to ensure that the right to life of all residents of Delhi is not

imperilled if activity which would lead to increase of insanitary

conditions as well as breeding of mosquitoes carrying dangerous

diseases is continued or permitted.

The photographs on record also suggest such activities.

101. It is clearly evident from the pleadings of the review petitioners

that they are attempting to and had caused encroachments over the


park in which they have no right, title or interest. The same is

completely impermissible.

102. If the complaints made on court record before us are correct, the

review petitioners are not only indulging in efforts to grab the land of

the park but have also committed fraud by renting out portions and

taking rent and other charges and carrying out commercial usage on

the land. These fraudulent activities would be penal offences under

the provisions of the Indian Penal Code and municipal law.

Unfortunately, the authorities or local police have failed to comply

with the court orders as above. The police has also failed to conduct

any investigation into the gross illegalities at the spot or to ensure

compliance with the law.

Conclusion

103. For all these reasons, clearly the review petitioners are

interlopers and have no right whatsoever on the subject matter of the

writ petition.

104. The review petitioners are unable to point out any error

apparent from the face of the record entitling a review of the order

dated 16th

May, 2017. This review petition is therefore, dismissed.

Result

(i) This review petition is devoid of legal merit and is hereby

dismissed. The pending application is also dismissed.


(ii) A direction is issued to the DCP, District South East as well as

the SHO of the concerned police station to cause an investigation to

be conducted into the fraudulent and criminal activities which are the

subject matter of the writ petition as well as the review petition and to

proceed in accordance with law against the persons found culpable for

the aforenoticed illegal activities.

A status report shall be filed before us within eight weeks from

today.

ACTING CHIEF JUSTICE

C.HARI SHANKAR, J

JUNE 05, 2017

aj/mk

Documents

$~ IN THE HIGH COURT OF DELHI AT NEW DELHI …lobis.nic.in/ddir/dhc/GMI/judgement/05-06-2017/GMI...Dahiya, Advs.for R-4/DG ASI Mr. Sanjeev Sabharwal, SC for DDA Mr. Satyakam, ASC for