*IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 16th August, 2011
+ W.P.(C) 3873/2008
SRI DOODH NATH MAHADEO MANDIR SABHA
(REGISTERED) ..... Petitioner
Through: Mr. Rajat Aneja, Adv.
Versus
UOI & ANR ..... Respondents
Through: Mr. Ravinder Agarwal, CGSC with
Mr. Nitish Gupta, Adv. for
respondents.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may Not necessary
be allowed to see the judgment?
2. To be referred to the reporter or not? Not necessary
3. Whether the judgment should be reported Not necessary
in the Digest?
RAJIV SAHAI ENDLAW, J.
1. The petitioner claiming to be an allottee for temple/religious purpose
of land in Sector-V of R.K. Puram, New Delhi filed this writ petition
seeking following reliefs:-
a. “Issue a writ of mandamus mandating the
respondents herein to take urgent steps to remove
the encroachers by demolishing the unauthorizedW.P.(C)3873/2008 Page 1 of 6
structures put up by the encroachers in the temple
premises of the petitioner situated in Sector-V, R.K.
Puram, New Delhi.
b. Issue a writ of mandamus mandating the respondent
to take other necessary steps as a follow up of the
allotment letter dated 31.12.1976 and letters dated
21.06.2005 and 03.04.2008, having accepted the
whole money payable, the balance of `43,393/- having
been accepted on 09.04.2008.
c. Issue appropriate writs in the nature of directions,
directing an enquiry as to the cropping up of several
encroachers having nexus with L&DO and MCD
officials/Police from 1980 onwards.”
2. This Bench on 10th November, 2009 ordered that the writ petition
could not be entertained qua prayer ‘a’ and entertained the writ petition
qua prayer ‘b’ only.
3. The petitioner aggrieved from the aforesaid order preferred an intra
court appeal being LPA No.50/2010 which was dismissed on 19 th January,
2010. The said order has attained finality.
4. The counsel for the petitioner has argued that though in pursuance to
the allotment, a Perpetual Lease Deed of the land was to be executed in
favour of the petitioner but has not been so executed. On enquiry, it is
stated that the respondent L&DO is refusing execution of the said Lease
Deed for the reason of non-payment by the petitioner of damages claimed
by the respondent L&DO on account of the petitioner having allegedly
allowed commercial shops etc. to have come into existence on the land
W.P.(C)3873/2008 Page 2 of 6
aforesaid. The counsel for the petitioner contends that the claim of the
respondent L&DO of the said damages is unsustainable in as much as it is
not the petitioner who has allowed any such persons but the said persons
are encroachers for whose removal prayer paragraph ‘a’ on which writ
petition had not been entertained was sought.
5. The counsel for petitioner has in this regard also invited attention to
the order dated 29th August, 2001 in W.P.(C) No.3028/1998 preferred by
the Mandir Market Welfare Association (Regd.). It is informed, that the
said Association represents the occupants on the land allotted to the
petitioner; they had by the said writ petition sought to restrain the
government and its agencies from demolishing the shops on the said land;
they had further claimed that they had been inducted into possession of the
shops by the petitioner herein as a tenants. The petitioner herein was also a
party to that writ petition and had denied the said claim of the Association.
The said writ petition was disposed of holding that it raised disputed
questions of fact which could not be adjudicated in writ jurisdiction and
giving liberty to the Association to prefer a Civil Suit and granting
protection in the interregnum.
6. The counsel for the petitioner informs that the Association in fact
preferred a Suit for permanent injunction impleading the respondents
herein as well as the petitioner herein as defendants but which Suit was
dismissed vide judgment dated 30th April, 2005 which is stated to have
W.P.(C)3873/2008 Page 3 of 6
attained finality.
7. It is the contention of the petitioner that the Market Association and
its members having failed to establish that they had been lawfully inducted
on the land as tenants by the petitioner, the respondent L&DO cannot
claim damages on the premise of the petitioner having inducted the
members of the said Association.
8. A perusal of the judgment dated 30th April, 2005 of the Civil Judge
dismissing the Suit of the Association shows that the suit was dismissed on
a preliminary issue of locus standi of the Association to prefer the Suit.
There was thus no adjudication on merits as to whether the members of the
Association were inducted by the petitioner or were illegal encroachers.
9. The counsel for the petitioner however contends that the said
persons inspite of opportunity having failed to prove their case, the
respondent L&DO cannot claim damages treating them to have been
inductees of the petitioner. It is urged that it is admitted by the respondent
L&DO also that the said persons were in existence since prior to the
allotment of the land in favour of the petitioner.
10. Per contra, the counsel for the respondent L&DO contends that it is
not the admitted position; that though encroachments existed prior to
allotment but the same were removed prior to the allotment and vacant
peaceful physical possession of the land allotted was delivered at the time
W.P.(C)3873/2008 Page 4 of 6
of allotment.
11. Per contra, the counsel for the petitioner controverts and contends
that the map drawn up at the time of delivery of possession also shows the
shops.
12. The persons who would have the evidence in their power and
control to show whether it is the petitioner who has inducted them or not
are not parties before this Court. The contention of the counsel for the
petitioner that they having failed to establish their claim, the respondent
L&DO should be directed to presume and proceed on the basis that they
were not inducted by the petitioner cannot be accepted. As aforesaid, there
is no adjudication on merits in this regard. It is for the petitioner to
approach the Forum where the said questions can be decided and which
Forum can be by way of Civil Suit only.
13. If it were to be held that it is the petitioner who has inducted or
allowed the land to be used for the purposes other than for which it was
allotted, the respondent L&DO cannot be compelled to execute the Lease
Deed in favour of the petitioner. Such determination entails disputed
questions of fact not only between the petitioner and the respondents but
would also require the presence of the inductees who have been claiming
that they have been inducted by the petitioner. What has been held in the
judgment dated 29th August, 2011 in the W.P.(C) No.3028/1998 supra filed
by the Market Association, in the order dated 10th November, 2009 of this
W.P.(C)3873/2008 Page 5 of 6
Bench refusing to entertain the writ petition qua prayer ‘a’ and in the order
dated 19th January, 2010 aforesaid of the Division Bench, holds good for
the said aspect of the matter also.
14. The petition is therefore dismissed as not maintainable qua prayer
‘b’ also with liberty however to the petitioner to take appropriate remedies
in law.
No order as to costs.
RAJIV SAHAI ENDLAW
(JUDGE)
AUGUST 16, 2011
‘pp’
W.P.(C)3873/2008 Page 6 of 6