Delhi District Court
Vide This Order vs Delhi (Hereinafter Referred As on 29 January, 2020
In the Court of Shri Dhirendra Rana : Additional Senior Civil Judge of
Central District at Tis Hazari Courts, Delhi
CS No. 1407/2016
In the matter of:-
Naiem Hussain,
President: Shia Community (Muslim),
Son of Fayaz Hussain,
R/o A-680, Nabi Karim, Police Chowki Road,
Near Kadam Sharif Qila,
Delhi.
......Plaintif
VERSUS
1. Municipal Corporation of Delhi,
through the Commissioner,
Town Hall, Chandni Chowk,
Delhi
2. Archaeological Survey of India,
Through its Director General,
Near National Museum, Janpath,
New Delhi.
3. Delhi Wakf Board,
Through its Chairman,
5028, Darya Ganj,
New Delhi.
......Defendants
Date of Institution : 05.10.2010
Reserved for Judgment : 23.01.2020
Date of Decision : 29.01.2020
Suit for Permanent Injunction
JUDGMENT
1. Vide this order, I shall dispose off this suit filed by Naiem Hussain (hereinafter referred as 'plaintiff') against Municipal Corporation of CS No. 1407/2016 Page no. 1 / 10 Delhi (hereinafter referred as defendant No. 1), Archaeological Survey of India (hereinafter referred as defendant No. 2) and Delhi Wakf Board (hereinafter referred as defendant No. 3) for permanent Injunction for restraining defendant No. 2 from blocking the entry in the mosque/Imambara situated at main Qutab Road, Ram Nagar Road, Opposite Nabi Karim Thana, Ward No. 87, Delhi (hereinafter referred as Mosque) and from creating any obstruction/hindrance in offering Namaz/prayer and other religious activities like Matam, Mazlis (Muharrum) and placing Tazia etc. in the masjid/mosque.
Plaintif's Case
2. It is the case of the plaintiff that he is the President of Shia Community of Muslim population of more than 20 lacs in the area of Nabi Karim and performing various duties with regard to promotion of religious objects with full devotion ad dedication. It is pleaded that there is a Masjid named Jinno wali Masjid situated at Main Qutab Road, Opposite Nabi Karim Thana, Ward No. 87, Delhi which consists of two Gumbads built on two halls i.e., 40'x40' in West, 40'x32' in East and in total there are four entry points on the Southern side road of the said Masjid. It is further pleaded that said Imambara/masjid had been worship place of Shia Community for offering prayers (Namajs) since the period of Lodhi and the Shia community people had been in occupation/possession of the said Imambara since time immemorial and they had been offering Namaj in the said masjid without any disturbance/hindrance of any kind whatsoever from any quarter in the past. It is further pleaded that Imambara/Masjid was taken in possession/control by the defendant No. 2 and whereby the plaintiff alongwith lakhs of people of Shia Community had been deprived off from using the said pious place as a place of offering Namaj and other CS No. 1407/2016 Page no. 2 / 10 religious activities for the promotion of religious sentiments. It is further pleaded that there is no other Imambara/Masjid for the Shia Community in the area of Nabi Karim and all the persons of Shia community have to go at 2 miles distance from their locality. Every person cannot go for offering Namaj five times a day at a far distance of 2 miles and due to the said reason the Shia community Muslims especially senior citizens and children have been suffering pecuniary and tangible losses. Due to some mis-happenings, some persons have to suffer irreparable losses. It is stated that defendant No. 3 has deputed security guard at the mosque who are creating obstruction in the peaceful offering prayers by the Shia community. Plaintiff sent a representation dated 21.04.2010 followed by a reminders dated 05.07.2010 and 23.08.2010 to defendant No. 1 to 3 for redressal of grievances of Shia community. It is stated that defendant No. 2 has no right over the mosque which is the exclusive religious place of Shia community and during the commonwealth games thousand of foreigners of Shia community from aborad are likely to visit the mosque. It is stated that defendant No. 2 had tried to capture the mosque which is illegal, arbitrary and against the freedom granted to every citizen in the constitution. It is stated that Shia Community is seeking permission to offer namaj as they have the first right over the mosque/Imambara. It is stated that no relief have been sought by the plaintiff against defendant No. 1 and 2. It is stated that cause of action arose in favour of the plaintiff when the mosque was closed by defendant No. 2 and plaintiff was deprived of from using the same as a religious place. It is prayed that defendant No. 2 may be restrained by decree of permanent injunction from blocking the entry in the mosque/Imambara and further not to create any obstruction/hindrance in offering prayers as well as other religious activities like Matam, Majlis (Muharram) and placing Tajia etc. in the mosque.
CS No. 1407/2016 Page no. 3 / 10Defendants' case
3. Written statement was filed on behalf of MCD i.e., defendant No. 1 wherein it is stated that suit is bad for non service of statutory notice under section 477/478 DMC Act and without cause of action. It is stated that suit is vague and had been drafted as an PIL and is liable to be dismissed under section 91 CPC. It is further stated that plaintiff has sought relief of declaration under the garb of injunction.
4. Written statement on behalf of defendant No. 2 was filed wherein it was stated that monument is under the jurisdiction of Department of Archeology, Government of NCT of Delhi and they may be asked to file the reply. Thereafter, detailed written statement was filed on behalf of defendant No. 2 wherein it is stated that plaintiff is neither the owner nor having any interest or title in the suit property and the suit is without cause of action. It is stated that as per record available mosque is an ancient historical monument which is designed as Imambara and a school belongs to Afghan period. It is stated that it was encroached upon by the people and commercial activities were going on in the monument prior to 06.08.2010. It is stated that Imambara (suit property) was never used for offering prayers and same was fully encroached upon for running shops. It is stated that department of Archaeological government of NCT of Delhi took the possession of the mosque on 06.08.2010 from defendant No. 1 on a request by MCD for conservation and its maintenance for Commonwealth Games 2010. It is stated that defendant No. 2 is an organisation under government of NCT of Delhi which takes care of all historical monuments which are not declared as protected monuments by ASI, Government of India and provides them all kind of security from CS No. 1407/2016 Page no. 4 / 10 being damaged and maintains the same. Subsequently, monument was handed over the Shahjahanbad Re-devolopment Corporation (SRDC) for its conversation and maintenance which deployed private security guards to avoid any illegal encroachment.
5. Written statement was filed on behalf of defendant No. 3 wherein it is stated that no cause of action arose in favour of plaintiff against defendant No. 3 and plaintiff has no locus standi to file the suit. It is further stated that suit of the plaintiff is not maintainable as plaintiff has not served any statutory notice under section 89 of Wakf Act, under section 80 CPC and section 477/478 of DMC Act upon defendant No. 3. It is further stated that mosque belongs to Delhi Wakf Board, who can manage the property and affairs of Wakf property. It is stated that Muslim population of area are offering prayer in the Mosque and Wakf Board has not created any hindrance in the peaceful offering of prayer/Namaj but had taken action against the illegal encroachers. It is stated that Delhi Wakf Board has not granted any permission to any person to observe 'Matam' and 'Mazlis' in the mosque. It is stated that this court has no jurisdiction to try this suit as the property belongs to Delhi Wakf Board and the said suit is to be tried in the Wakf Tribunal.
6. Replication was filed by the plaintiff to the written statement of the defendants wherein the contents of the plaint have been reiterated and the contentions of the defendants in their written statement have been denied except the admissions made.
7. Vide order dated 17.07.2012, the following issues were framed by my learned Predecessor for trial :
CS No. 1407/2016 Page no. 5 / 101. Whether the plaintiff is entitled for the relief of permanent injunction as prayed for? OPP
2. Relief.
Plaintifs evidence
8. Plaintiff has examined himself as PW1, who in his affidavit in evidence Ex. PW-1/A has stated and reiterated on oath the contents of the plaint. He has relied upon certain documents. Ex. PW1/1 is site plan, Ex. PW1/2 (colly) and Ex. PW1/3 (colly) are photographs.
9. Thereafter, plaintiff evidence was closed on 16.10.2014 and the case was fixed for defendant evidence.
Defendant Evidence
10. DW2 is Sh. Uday Kumar Assistant Archaeologist, Department of Archeology, Government of NCT of Delhi, who in his evidence affidavit Ex.D2W-1/X has stated and reiterated the contents of the written statement. He has relied upon certain documents. Ex.D2W-1/1 to Ex. D2W-1/6 and mark D2W1/A.
11. DW3 is Mohd. Yunus Khan, Zonal Wakf Officer, Delhi Wakf Board, who in his evidence affidavit Ex. DW-3/B has stated and reiterated the contents of the written statement. He has relied upon certain documents. Ex. DW-3/1 and Ex. DW3/2.
12. Mr. Allah Noor has also been examined as DW3 inadvertently. This is a witness of defendant No. 3, who in his evidence affidavit Ex. DW-3/A has stated and reiterated the contents of the written CS No. 1407/2016 Page no. 6 / 10 statement. He has relied upon certain documents. Ex.DW3/1 is the gazette notification dated 08.09.1977 and Ex. DW3/2 is the authority letter.
13. Thereafter, defendant evidence was closed vide order dated 23.10.2019. No evidence has been led on behalf of defendant No. 1 and the matter was fixed for final arguments.
14. I have heard arguments addressed by Sh. Jitender Kapoor, ld. counsel for the plaintiff, Sh. Ashutosh Gupta, ld. counsel for defendant No. 1, Sh. A. K. Mishra, ld. counsel for defendant No. 2 and Sh. Faiz Ahmad for defendant No. 3. I have heard rival submissions from the parties and perused the judicial record.
15. Now I shall give my issue-wise findings.
Issue No. 1 : Whether the plaintiff is entitled for the relief of permanent injunction as prayed for? OPP
16. The onus was on the plaintiff to prove as to how he is entitled for the relief of injunction. It is argued on behalf of plaintiff that main relief is against defendant no. 2 only and defendant No. 1 and 3 are proforma parties. Perusal of the plaint reflects that in the first paragraph the plaintiff has claimed himself to be the President of Shia Community of Muslim population of more than 20 lakhs in the area of Nabi Karim but there is nothing on record that he is the President of Shia community. No witness has been examined to corroborate the version of the plaintiff. No documents has been placed on record that he has been elected as a President of the Society. It is not the case that plaintiff has filed this suit under section 91 CPC for prevention of CS No. 1407/2016 Page no. 7 / 10 public nuisance. Two or more persons can institute a suit under section 91 CPC to stop a public nuisance but in the present case we have only one plaintiff before us and it is a matter of record that no permission has been sought to pursue the matter under section 91 CPC.
17. The entire plaint does not disclose any cause of action in favour of the plaintiff. It is nowhere stated that plaintiff was a regular visitor of the mosque/Imambara to offer prayers and on a particular day and time he was restrained by the security guards deployed by the defendant No. 2 to offer such prayers. Not even a single word has been said in the entire plaint or in the affidavit that any such incident ever occurred. Meaning thereby, plaintiff has failed to disclose that any of his personal right was violated by the officials/employees of defendant No. 2. It has been pleaded on behalf of plaintiff that senior citizen of Shia Community are facing trouble due to restrictions imposed by guards deployed by defendant No. 2 and they have to visit a mosque to offer prayers at a distance of 2 kms. This fact could have been proved by examination of any senior citizen but no such effort has been done on behalf of plaintiff.
18. It is a matter of record that this historical monument was illegally encroached upon and commercial activities were going on. The illegal encroachment was got removed by defendant No. 1 and thereafter, the building was handed over to defendant No. 2 for its preservation and its maintenance. It is the case of the Delhi Wakf Board, defendant No. 3 that the mosque was never used as Imambara and never used for the purpose of Matam, Majlis and Tazia, etc. It is a mosque which can be visited by the devotees to offer prayers. The onus was on the plaintiff to prove that prayers were being offered in the mosque since long. The photographs placed on record by the plaintiff reflects that the building CS No. 1407/2016 Page no. 8 / 10 was in a very bad shape and there was no evidence of prayers being offered over there or school being run in that building.
19. During the course of final arguments it is argued on behalf of plaintiff that this suit has been filed in personal capacity of the plaintiff and this fact can be ascertained from the memo of parties wherein name of any Association or society has not been mentioned.
20. This argument seems to be an afterthought which has cropped up into the mind of the plaintiff only at the stage of final arguments and not before that. In the entire plaint, plaintiff has claimed himself to be the president and "plaintiff (Shia Community)" is the term used in the entire plaint. Therefore, the mere fact that name of any association or society is absent from the memo of parties is not going to help the plaintiff. The court is concerned with the contents of the plaint in the form of pleadings wherein it is clear that plaintiff has claimed himself to be the President of Shia Community. Even for the sake of argument, if we consider this argument as gospel truth, even then plaintiff has failed to disclose any cause of action in his favour individually. He has failed to disclose as to what injury has been caused to him by the conduct of officials of defendant No. 2. Moreover, it is the case of the plaintiff that there are four gates in the suit property. If one entry has been blocked by defendant No. 2 and plaintiff is hell bent upon to offer his prayers in the mosque only then he could have entered from other gates of the mosque. This court has no hesitation to say that under the garb of this suit, plaintiff is trying to hamper the administrative powers of Government Departments. Keeping in view the above discussion I am of the view that plaintiff has miserably failed to prove this issue in his favour and against the defendants and accordingly, this issue decided against the plaintiff.
CS No. 1407/2016 Page no. 9 / 10Relief
21. In view of my findings on the issue no.1, plaintiff is not entitled for any relief and his suit is dismissed. Decree sheet be prepared. File be consigned to the record room.
Digitally signed by DHIRENDRA DHIRENDRA RANA
Announced in the Open Court RANA Date: 2020.01.29
on 29.01.2020 17:01:03 +0530
(Dhirendra Rana)
Additional Senior Civil Judge
Central District: Tis Hazari Courts: Delhi
CS No. 1407/2016 Page no. 10 / 10