Savyasachi K. Sahai vs Union Of India & Ors on 5 June, 2017

$~
*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

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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 16 th
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

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there is any documents to establish title.

5. Mr. Rajeev Kumar, learned counsel for the petitioner
has drawn our attention to an order dated 12 th 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.

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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.

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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 :

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WARD – I
(1) (2) (3) (4) (5) (6) (7) (8)
S.No Name of Date or Nature Detail of Description of Name and Wakf gazette
Wakf year of of object Wakf Wakf property. address of notification
Wakif, if creation of Wakf Deed if (A) Immovable Mutawalli dated/remarks
known of Wakf any, with its location,
ref. to nature, tenure,
registration plot or
records Mpl.No.(B)
Moveable, its
nature
investment,
(area sq.yds.)
xxx xxx xxx
1078. Muslim Over 100 Burial Graveyard in Delhi (31-12-1970
Graveyard, years. of dead triangular Wakf Page
Opposite shape bounded Board No.1354/231)
Oberoi Inter by Mathura
Continental Road, Lodhi
Hotel, Road Link
Mathura Road (Area
Road, 12.8 area
Nizamuddin, minus area of
New Delhi. Okhla Canal)
containing
Dargah Shah
Firdaus and
Dargah
Musafir Shah
with a wall
Mosque. Over
200 acc. graves
outside site.

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

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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

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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)

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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 LDO
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

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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
LDO/DDA claimed as waqfs to the Delhi Waqf Board. Again, a

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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

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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

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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

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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.

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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 LDO shall ensure
that no further unauthorised construction and/or illegal

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encroachment takes place in the area in question. To
ensure the aforesaid, whatever measures have to be taken
by the Deputy LDO 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.”

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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

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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
LDO 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.

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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

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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.

Rev.P. No. 242/2017 in W.P.(C)No.7955/2015 Page 20 of 75

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

Rev.P. No. 242/2017 in W.P.(C)No.7955/2015 Page 21 of 75
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 24th
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

Rev.P. No. 242/2017 in W.P.(C)No.7955/2015 Page 22 of 75
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

Rev.P. No. 242/2017 in W.P.(C)No.7955/2015 Page 23 of 75
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

Rev.P. No. 242/2017 in W.P.(C)No.7955/2015 Page 24 of 75
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 16 th
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.

Rev.P. No. 242/2017 in W.P.(C)No.7955/2015 Page 25 of 75

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

Rev.P. No. 242/2017 in W.P.(C)No.7955/2015 Page 26 of 75
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.

Rev.P. No. 242/2017 in W.P.(C)No.7955/2015 Page 27 of 75

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

Rev.P. No. 242/2017 in W.P.(C)No.7955/2015 Page 28 of 75
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,

Rev.P. No. 242/2017 in W.P.(C)No.7955/2015 Page 29 of 75
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

Rev.P. No. 242/2017 in W.P.(C)No.7955/2015 Page 30 of 75
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

Rev.P. No. 242/2017 in W.P.(C)No.7955/2015 Page 31 of 75
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

Rev.P. No. 242/2017 in W.P.(C)No.7955/2015 Page 32 of 75
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.

Rev.P. No. 242/2017 in W.P.(C)No.7955/2015 Page 33 of 75

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

Rev.P. No. 242/2017 in W.P.(C)No.7955/2015 Page 34 of 75
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 :

Rev.P. No. 242/2017 in W.P.(C)No.7955/2015 Page 35 of 75

“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

Rev.P. No. 242/2017 in W.P.(C)No.7955/2015 Page 36 of 75
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

Rev.P. No. 242/2017 in W.P.(C)No.7955/2015 Page 37 of 75
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

Rev.P. No. 242/2017 in W.P.(C)No.7955/2015 Page 38 of 75
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

Rev.P. No. 242/2017 in W.P.(C)No.7955/2015 Page 39 of 75
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

Rev.P. No. 242/2017 in W.P.(C)No.7955/2015 Page 40 of 75
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

Rev.P. No. 242/2017 in W.P.(C)No.7955/2015 Page 41 of 75
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 20 th
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

Rev.P. No. 242/2017 in W.P.(C)No.7955/2015 Page 42 of 75
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

Rev.P. No. 242/2017 in W.P.(C)No.7955/2015 Page 43 of 75
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 3 rd 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 20 th
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

Rev.P. No. 242/2017 in W.P.(C)No.7955/2015 Page 44 of 75
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

Rev.P. No. 242/2017 in W.P.(C)No.7955/2015 Page 45 of 75
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

Rev.P. No. 242/2017 in W.P.(C)No.7955/2015 Page 46 of 75
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 18 th 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

Rev.P. No. 242/2017 in W.P.(C)No.7955/2015 Page 47 of 75
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 2 nd
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”.

Rev.P. No. 242/2017 in W.P.(C)No.7955/2015 Page 48 of 75

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 25th 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

Rev.P. No. 242/2017 in W.P.(C)No.7955/2015 Page 49 of 75
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

Rev.P. No. 242/2017 in W.P.(C)No.7955/2015 Page 50 of 75
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

Rev.P. No. 242/2017 in W.P.(C)No.7955/2015 Page 51 of 75
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

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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

Rev.P. No. 242/2017 in W.P.(C)No.7955/2015 Page 53 of 75
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

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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

Rev.P. No. 242/2017 in W.P.(C)No.7955/2015 Page 55 of 75
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

Rev.P. No. 242/2017 in W.P.(C)No.7955/2015 Page 56 of 75
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

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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

Rev.P. No. 242/2017 in W.P.(C)No.7955/2015 Page 58 of 75
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

Rev.P. No. 242/2017 in W.P.(C)No.7955/2015 Page 59 of 75
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

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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

Rev.P. No. 242/2017 in W.P.(C)No.7955/2015 Page 61 of 75
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

Rev.P. No. 242/2017 in W.P.(C)No.7955/2015 Page 62 of 75
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

Rev.P. No. 242/2017 in W.P.(C)No.7955/2015 Page 63 of 75
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.LDO/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

Rev.P. No. 242/2017 in W.P.(C)No.7955/2015 Page 64 of 75
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

Rev.P. No. 242/2017 in W.P.(C)No.7955/2015 Page 65 of 75
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

Rev.P. No. 242/2017 in W.P.(C)No.7955/2015 Page 66 of 75
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

Rev.P. No. 242/2017 in W.P.(C)No.7955/2015 Page 67 of 75
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

Rev.P. No. 242/2017 in W.P.(C)No.7955/2015 Page 68 of 75
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

Rev.P. No. 242/2017 in W.P.(C)No.7955/2015 Page 69 of 75
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

Rev.P. No. 242/2017 in W.P.(C)No.7955/2015 Page 70 of 75
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)

Rev.P. No. 242/2017 in W.P.(C)No.7955/2015 Page 71 of 75

(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

Rev.P. No. 242/2017 in W.P.(C)No.7955/2015 Page 72 of 75
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

Rev.P. No. 242/2017 in W.P.(C)No.7955/2015 Page 73 of 75
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.

Rev.P. No. 242/2017 in W.P.(C)No.7955/2015 Page 74 of 75

(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

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