Delhi High Court
Panchsheel Enclave Residents Welfare ... vs Union Of India (Uoi) And Ors. on 19 August, 2002
Author: A.K. Sikri
Bench: S.B. Sinha, A.K. Sikri
JUDGMENT A.K. Sikri, J.
1. CWP No. 5761/2001 was filed by the Panchsheel Enclave Residents Welfare Association in the nature of Public Interest Litigation. Issues raised in the writ petition pertained to unauthorised constructions in and around the two old dilapidated and protected monumental structures right behind Blocks A and A1 of Panchsheel Enclave, New Delhi, falling in the area declared as Green Belt. The petitioner had pointed out that although this land belongs to Delhi Development Authority, it was not only encroached upon by unauthorised persons but they were raising illegal structures inspite of the fact that no structures could be raised within 100 meters of the protected monuments. After issuing notice to various authorities including DDA, ASI etc. and hearing the parties at length, the writ petition was disposed of with the following directions.
I. The Archaeological Survey of India shall take appropriate action for removal of unauthorised encroachments on the land in question and implement its order dated 1.11.88 passed under Public Premises (Eviction of unauthorised Occupants) Act, 1971, if there is no other impediment for taking action pursuant to the aforesaid eviction order.
We may notice that although the Archaeological Survey of India has stated in its affidavit that further action could not be taken in view of some FIR pending, however, we do not understand as to how pendency of any such FIR could come in the way of the Archaeological Survey of India in implementing its order dated 1.11.88 unless some appeal is filed under the Public Premises (Eviction of unauthorised Occupants) Act, 1971 against the aforesaid order and some stay order is passed by the Competent Court. It is not stated in the affidavit that nay such appeal has been filed.
II. The DDA shall also take appropriate action for removal of the encroachment from the site earmarked for District Part and also to ensure that no construction activity is carried out therein.
Both the aforesaid authorities should ensure that no further construction takes place. They should also take steps for removal of all unauthorised construction which has come up in the area in accordance with law. Such construction activities being contrary to the doctrine of "Public Trust" cannot be allowed to remain.
III. The Deputy Commissioner of Police of the concerned area shall extend all possible assistance and render all necessary police aid to the Archaeological Survey of India and DDA in executing their action.
The appropriate action should be taken within a period of two months and the necessary action taken report be filed in this case.
It is made clear that in case any further construction takes place, the Deputy Commissioner of Police of the area in question as well as concerned officials of Archaeological Survey of India and DDA shall be personally responsible for the same and answer able to this court.
In case the petitioner feels that appropriate steps are not taken by the aforesaid authorities in all earnestness, the petitioner shall be entitled to bring this to the notice of the court by filing miscellaneous application and may seek appropriate direction therein.
2. After the disposal of the writ petition with the aforesaid directions vide judgment dated 21st May, 2002 we find that miscellaneous applications area pouring in at the instance of some persons purported to be the residents of the area. Within few days of the judgment, i.e., on 31st May, 2002 CMs 6377-79/2002 were filed by Bhan Singh & Ors. who, inter alia, alleged that they were not encroachers, and therefore, no precipitated action in terms of the said judgment be taken in their cases. These applications were disposed of on the same day by passing the following order:
"Having heard the counsel for the parties, we are of the opinion that by the judgment of this court dated 21.5.2002, the DDA has merely been directed to take steps for removal of encroachment. However, the applicant states that he is not encroacher. If that by so, his claim may be examined by the DDA and appropriate action thereupon may be taken.
CMs disposed of.
3. Thereafter, CMs. 6458-60/2002 were filed during summer vacations. These were filed by three applicants, namely, Purani Masjid, Madarsa Zeenat-ul-Quran and Hafiz Niyazuddin. The prayer made in these applications was to set aside ex-parte order dated 21st May, 2002 as according to them, they were not heard in the matter. They further accused the petitioner of levelling wild allegations with respect to encroachments and not depicting correct factual position. These applications were also disposed of vide order dated 7th June, 2002 by observing that order dated 31st May, 2002 will ensure to the benefit of these applicants as well and they were entitled to approach the DDA, which after granting hearing to them, could take appropriate action in accordance with the law.
4. Thereafter, another CM No. 7145/2002 was filed on behalf of the aforesaid three applicants again seeking relief to the effect that order dated 31st May, 2002 readwith order dated 7th June, 2002 be extended to the Archaeological survey of India as well which should be commended not to demolish the structures belonging to these applicants which was also dismissed by order dated 17th July, 2002 in view of order dated 7th June, 2002 already passed in the matter.
5. Now CM No. 7180/2002 is filed by one Sh. Bundu Khan. In this application the applicant alleges that he is aggrieved by the judgment and order 21st May, 2002 and seeks indulgence in clarifying the said order. According to the applicant, the entire land comprising Khasra No. 351/3/1 wherein the protected monument is situated has been shown in the revenue records as Shamlat Deh village of Chirag Delhi and the land with the Delhi Wakf Board an that District Park does not form a port of Khasra No. 351/3/1. The applicant is resident of T-6/B, Dargah Makhdoom Shah, Near A Block Panchsheel Enclave, New Delhi which is under the purview of Delhi Wakf Board and he further alleges that he has applied to Delhi Wakf Board for tenancy vide application dated 9th July, 1998. His submission is that since the place in his occupation is under Delhi Wakf Board, it is only the Delhi Wakf Board which has right to take any action against for dispossession etc. and on these allegations following prayer is made:
(a) clarify the order dated 21.05.2002 as regards the application of the order, dated 21.05.2002 by this Hon'ble court on the land under the Delhi Wakf Board.
(b) restrain the respondents from dispossessing the applicant till such time the tenancy right is not refused by the Delhi Wakf Board, which is present under consideration by the Wakf Board.
6. Mr. Rajiv Dutta, learned senior counsel appearing for the petitioner in the writ petition argued that the aforesaid application was clearly mala fide and misuse and abuse process of law. He pointed out that same counsel had earlier filed CMs 6458-60/2002 wherein it was alleged that the Delhi Wakf Board was occupying the land in question illegally and now a contrary stand has been taken in the present application by giving an impression that the Delhi Wakf Board is rightful owner of the land and the premises in possession of the applicant belongs to the Delhi Wakf Board.
7. There appears to be some substance in the contention of Mr. Dutta. That apart fact remains that even as per applicant's own showing he is not even the lawful tenant under Delhi Wakf Board either and he has merely applied for tenancy. Thus be is unauthorised occupant even under Delhi Wakf Board if his version is to be believed. Moreover, the direction contained in judgment dated 21st May, 2002 is for removal of any unauthorised encroachments as well as any illegal construction which has come up in contravention of Ancient Monuments Archaeological Sites and Remains Act, 1958. Rules 1959 as well as notification issued in the year 1992 under the aforesaid Act which completely prohibits any construction within 100 meters of the protected monuments. Further, the DDA is to remove those encroachments from the site earmarked for District Park of which DDA is the owner.
8. In view thereof, no such clarification or modification as sought for by the applicant would be permissible nor this application would be maintainable. It appears that the application is filed with malafide intentions for some oblique motives. The same is accordingly dismissed.