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Jamia Arabia Nizamia Welfare ... vs Delhi Wakf Board & Others on 12 January, 2011

Author: Sanjiv Khanna

Bench: Chief Justice, Sanjiv Khanna

18.
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+      W.P.(C) 3927/2010

       JAMIA ARABIA NIZAMIA WELFARE EDUCATIONAL
       SOCIETY                                  ..... Petitioner
                    Through Mr. Rakesh Tiku, Sr. Advocate
                    with Mohd. Sajid, Advocate.

                     versus

       DELHI WAKF BOARD AND ORS.             ..... Respondents
                    Through Mr. Anjum Javed & Mr. Nirbhay
                    Sharma, Advocates for respondent No. 2.
                    Ms. Shobha Gupta, Advocate for MCD.
                    Mr. Javed Ahmad & Mr. Eram Khan,
                    Advocates for DWB.

        CORAM:
        HON'BLE THE CHIEF JUSTICE
        HON'BLE MR. JUSTICE SANJIV KHANNA


                ORDER

% 12.01.2011 The present writ petition is connected with Writ Petition (Civil) No. 1512/1984. This Court in the said writ petition has passed the following order:-

"By this writ petition, report under Article 226 of the Constitution of India, the petitioners have made the following prayers:-

" In view of the aforesaid facts and in the interest of justice, it is most respectfully prayed that this Hon'ble Court be graciously pleased to issue a write(sic) of prohibition prohibiting the respondents 1 to 3 from WRIT PETITION (CIVIL) NO. 3927/2010 Page 1 of 4 implementing or giving effect to the office order/letter/notification No. J.20011/4/74. 1- II Govt. of India, Ministry of Works and Housing dated 27.3.1984 marked as annexure I and/or implementing or giving effect to the recommendations of the Burney Committee and a writ of certiorari quashing the said office order/letter/notification and directions contained in annexure I and a writ of mandamus directing the respondents 1 to 3 not to transfer or dispose off the properties mentioned in Annexure-I to the respondent No. 4 in any manner whatsoever and any other writ, order or direction which this Hon'ble Court deems just and fit in the circumstances of the case. The cost of the writ petition be also allowed."

2. When this matter was listed on 1st June, 1984, a Division Bench of this Court passed the following order:-

Rule.

Notice in C.M. for 18.7.1984. In the meantime, status quo regarding the property should be maintained and possession should be retained by the Government. If lease deeds have not yet been executed these should not be executed. Dasti."

3. Thereafter, the said order continued and eventually it was made absolute on 7th January, 1985. It is agreed at the Bar that the said order has not been vacated. It is also accepted at the Bar that no lease deed has been executed.

4. This Court on 26th August, 2010 had passed the following order:-

" Mr. Parag P. Tripathi, learned WRIT PETITION (CIVIL) NO. 3927/2010 Page 2 of 4 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."

5. On 6th October, 2010, the following order came to be passed:-

" 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."

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 1 st June, 1984 shall remain in force. Needless to say when we have directed that the Union of India shall have a fresh look into the matter, it shall keep in view the law in praesenti and the factual position. All other issues and contentions are left open.

With the aforesaid direction, the writ petition stands disposed of."

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. WRIT PETITION (CIVIL) NO. 3927/2010 Page 3 of 4 1512/1984, the Union of India shall take appropriate steps for removal of unauthorized encroachment and unauthorized construction as the same has taken place in violation of the order passed by this Court in the year 1984. Needless to say, when we have said unauthorized 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 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.

4. With the aforesaid direction, the writ petition stands disposed of. There shall be no order as to costs.

CHIEF JUSTICE SANJIV KHANNA, J.

JANUARY 12, 2011 VKR WRIT PETITION (CIVIL) NO. 3927/2010 Page 4 of 4