Delhi High Court
Mr Luice M Jacob vs Union Of India & Ors. on 22 August, 2023
Author: Satish Chandra Sharma
Bench: Chief Justice, Sanjeev Narula
$~30.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Date of Decision: 22.08.2023
% LPA 598/2023 & CM APPLs. 43134-43135/2023
MR LUICE M JACOB ..... Appellant
Through: Mr. S.S. Jain and Mr. R.K. Sharma,
Advocates.
versus
UNION OF INDIA & ORS. ..... Respondents
Through: Mr. Ajay Digpaul, CGSC with
Mr.Kamal R. Digpaul and Ms. Swati
Kwatra, Advocates for respondents
No.1.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJEEV NARULA
SATISH CHANDRA SHARMA, CJ. (ORAL)
1. The present Letters Patent Appeal (LPA) is arising out of the common
judgment dated 11.07.2023 passed by the learned Single Judge in W.P.(C.)
No.2725/2018 titled Mrs. Roseline Wilson and Ors. Vs. Archaeological
Survey of India and Ors.; and W.P.(C.) No. 8203/2018 titled Luice M. Jacob
Vs. Union of India & Ors. The learned Single Judge has passed a common
judgment deciding both the aforesaid writ petitions as they relate to eviction
notices issued to the writ petitioners by Archaeological Survey of India
(ASI).
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By:BHUPINDER SINGH
ROHELLA
Signing Date:29.08.2023
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2. The writ petitioners in W.P.(C.) No. 2725/2018 titled Mrs. Roseline
Wilson and Ors. Vs. Archaeological Survey of India and Ors. have preferred
LPA 580/2023 and this Court vide judgment dated 17.08.2023 has dismissed
the said LPA preferred in the matter. Now, a second LPA has been
preferred in the matter by Mr. Luice M. Jacob/ writ petitioner in W.P.(C.)
No. 8203/2018.
3. The undisputed facts of the case reveal that a writ petition being
W.P.(C.) No. 8203/2018 was preferred by Luice M. Jacob stating that his
grandfather was placed in possession of a portion of a land at Christian
Compound, Kishan Ganj, Delhi (hereinafter referred to as 'said property')
by Mr. Alool, Manager of Christian Compound in September 1947 and the
writ petitioner is in peaceful and uninterrupted possession of the said
property.
4. The writ petitioner stated before the learned Single Judge that land
admeasuring 3 Bighas & 1 Biswa comprised in Khasra No.465, Khewat
No.237 was allotted by the British Government to the Armenian Society for
the purpose of establishing a graveyard in respect of Russian Christians.
The Armenian Society constructed a Chapel and the surrounding land was
left open for the purpose of graves. The property was known as Armenian
Cemetery. It was under the management and control of Armenian
Association, 20 Park Mansions, Park Street, Calcutta.
5. In the writ petition, it was further stated that the writ petitioner's
grandfather was allotted a land by the Armenian Society in the year 1947.
On 26.11.1956, Mr. John Jacob, the grandfather of the petitioner expired. In
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ROHELLA
Signing Date:29.08.2023
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those circumstances, the writ petitioner/ appellant being the legal heir of
Mr.John Jacob continued in possession of the property. The writ petitioner/
appellant has further stated that by virtue of adverse possession, the writ
petitioner/ appellant became the titleholder of the property, and by no stretch
of imagination, the order could have been passed by the Director General,
ASI dated 01.05.2018 directing eviction of the writ petitioner.
6. The matter was heard at length by the learned Single Judge and the
learned Single Judge vide judgment dated 11.07.2023 has dismissed the writ
petition. The learned Single Judge in paragraphs 37 to 44 of the said
judgment has held as under:
"37. The Petitioners in W.P.(C) 2725/2018 approached this
Court in W.P.(C) 20917-76/2016. The learned Single Judge of
this Court vide order dated 12.01.2007 dismissed the said Writ
Petition. The Petitioners preferred an LPA bearing No.
123/2007 titled as „Roseline Wilson & Ors v. UOI‟. The
Hon‟ble Division Bench vide order 16.10.2008 set aside the
order passed by the learned Single Judge with a direction to the
ASI to once again consider the reply dated 20.09.2005 filed by
the Petitioners and pass a speaking order after affording an
opportunity of hearing to the Petitioners. In the meantime, the
parties were directed to maintain status quo qua the possession
and construction of the said property. In the meanwhile, the
Petitioner in W.P.(C) 8203/2018, filed a Civil Suit bearing No.
87/2005 seeking a declaration and permanent injunction
against ASI and other Defendants therein to the effect that the
Petitioner is the owner of the property in question by virtue of
adverse possession. Learned Civil Court, vide Judgment dated
08.05.2014 negated the said plea and dismissed the said suit.
Thereafter, an appeal bearing RCA No. 35/2015 was preferred
by the Petitioner, which was also dismissed by learned
Additional District Judge, Delhi vide Judgment dated
14.12.2015. A second appeal bearing RSA No. 159/2016 was
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ROHELLA
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also preferred by the Petitioner, but the same was also
dismissed by this Court vide Judgment dated 19.07.2016. Hence
the finding of the learned Civil Court attained finality.
38. ASI failed to pass a speaking order in compliance of the
directions of this Court dated 16.10.2008 in LPA No. 123/2017
and hence, the Petitioners in W.P.(C) 2725/2018 filed a
Contempt Petition against ASI alleging non-compliance of the
order dated 16.10.2008. This Court disposed of the said
Contempt Petition with a direction to ASI to comply with the
Order dated 16.10.2008 passed by Hon‟ble Division Bench of
this Court. ASI passed a speaking order dated 10.01.2017
holding that the Petitioners are illegal encroachers of the said
property in question. In view of the speaking order dated
10.01.2017, ASI again initiated eviction proceedings against
the Petitioners. The Petitioners assailed the said eviction
proceedings before this Court in W.P.(C) 594/2017. This Court
vide Order dated 20.11.2017, disposed of the said Writ Petition
with a direction to pass a fresh speaking order. ASI again
passed a detailed speaking order dated 05.03.2018 directing
the Petitioners to vacate the said premises within 7 days.
39. In view of the various litigations, it is evident that the
Petitioners miserably failed to establish their title over the said
land before various Judicial foras. In fact, the Petitioners are
unauthorizedly occupying the land which forms part of
D‟Eremao Cemetery, Kishan Ganj, Delhi.
40. The Petitioners in W.P.(C) 2725/2018 raised an
argument before this Court that the Petitioners are the owners
of the said Property and the same is proved by Jamabandi for
the year 1921-22. It is their claim that the Jamabandi shows the
name of their forefather, Mr. Mohd. Ibrahim, as the owner of
the said Property. It was further stated during the course of
arguments by learned counsel appearing for the Petitioners
that they have placed several documents on record showing as
to how they are the successors of Mohd. Ibrahim. Further, it
was also their contention that ASI did not even mention about
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ROHELLA
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the Jamabandi relied upon by Petitioners in the Impugned
Eviction Orders.
41. This Court has perused the Jamabandis for the years
1966-67 and 1989-90 filed by ASI along with its additional
affidavit. The name of Mr. Mohd. Ibrahim is nowhere
mentioned in the said Jamabandis. Further, these Jamabandis
also show that the Government is the owner of the said
Property. This Court has also perused the Jamabandi for year
1921-22 which also shows that the Government is the owner of
the said Property. Thus, the contention of Petitioners that they
are the owners of the said Property on the basis of Jamabandi
is misconceived. Further, this Court failed to find any document
on record which shows that the Petitioners are successors of
Mr. Mohd. Ibrahim, neither the learned counsel for Petitioners
was able to show to this Court any such document. Nonetheless,
it is well settled law that the ownership of an immovable
property cannot be decided on the basis of Jamabandi. This
Court does not appreciate the reliance of Mr. Virag Agarwal
upon the decision in Partap Singh (supra) in order to support
his contention that Petitioners can be declared as owners of the
suit property on the basis of Jamabandi itself. This authority of
Hon‟ble Supreme Court instead states about the presumption of
truth when attached to jamabandi can be rebutted. It nowhere
states that ownership can be decided on the basis of
Jamabandi. Nonetheless, it is a well settled position of law that
entry in a Jamabandi does not confer title on a person whose
name appears in that Jamabandi.
42. The ownership dispute of the Petitioner in W.P.(C)
8203/2018 was agitated before the learned Civil Court. There
is no dispute that the Petitioners in W.P.(C) 2713/2018 are
similarly situated as Petitioner in W.P.(C) 8203/2018. The
finding of the learned Civil Court in the said proceedings has
already attained finality. As discussed herein above, the
Petitioners failed to produce any document, whatsoever, to
establish their title. Jamabandis placed on record show that the
land belongs to the Government. Even otherwise, no ownership
can be conferred on the Petitioners by virtue of the alleged
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ROHELLA
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entries in the Jamabandi. The issues raised by the Petitioners
are already settled by various Judicial foras in different
litigations initiated by the Petitioners themselves.
43. In view of the detailed discussion hereinabove, it is
evident that the Petitioners miserably failed to establish their
ownership over the said land. Petitioners failed to place on
record any documents to show that the said land does not form
part of D‟Eremao Cemetery, Kishan Ganj, Delhi, which is a
centrally protected monument declared of national importance
vide Notification No. 7331 dated 13.12.1922 and published in
the Gazette of India on 23.12.1922. ASI has placed on record
the official site plan of D‟Eremao Cemetry, Kishan Ganj, Delhi.
There is no dispute qua this site plan. ASI passed the Impugned
Eviction Orders after affording proper opportunity of hearing
to the Petitioners.
44. Accordingly, the present Writ Petitions are hereby
dismissed as the Petitioners have not been able to show any
impunity in the Impugned Eviction Orders."
7. As it was a common judgment in W.P.(C.) Nos. 2725/2018 &
8203/2018, this Court has passed a detailed and exhaustive order dismissing
LPA No.580/2023 preferred by Mrs. Roseline Wilson and Others, and
observed in paragraphs 50 to 71 as under:
"50. The appellants/ writ petitioners in the writ petition are
making an attempt to claim title by virtue of adverse possession,
and therefore, the Director General, ASI - as it was a case of
protected monument, has rightly passed an order after hearing
the parties at length in respect of eviction of the appellants.
51. It is unfortunate that in respect of a protected monument,
all kinds of proceedings have taken place right from the Civil
Suit to Second Appeal before this Court, Writ Petitions, LPAs,
and since 2005, the ASI has not been able to evict the
unauthorized occupants, nor been able to demolish the
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ROHELLA
Signing Date:29.08.2023
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unauthorized structures, which are certainly in existence over
the land which forms part of the D‟ Eremao Cemetery.
52. Another important aspect of the case is that the Armenian
Association - as the D‟ Eremao Cemetery is known as
Armenian Cemetery, also instituted a Civil Suit being Civil Suit
No.139/1967 titled as „Armenian Association Vs. Mathews
Jacob & Ors.‟, wherein the Armenian Association categorically
stated in paragraph 2 of the plaint that the Armenian
Association was the Manager of Chapel and open land
surrounding it, which as a whole is popularly known as
Armenian Cemetery, Kishan Ganj, Delhi surrounding the
Chapel burial ground. Meaning thereby, it is confirmed that at
no point of time, in respect of the civil proceedings, any Title
Deed was brought to the notice of the Civil Court, or the High
Court, nor any document transferring the title, was brought
before the Court by the appellants, or by any other person in
the matter.
53. The plea of adverse possession was turned down in Civil
Suit No.87/2005 as well as by the High Court. In fact, this
Court - while deciding RSA No.159/2016 vide judgment dated
19.07.2016, arrived at a conclusion that the suit property was
allotted by the Union of India to the Armenian Association and
the appellants/ plaintiffs therein were permitted to stay there
only as a licensee. It was also held that the appellants/
plaintiffs therein have no claim for ownership by taking a plea
of adverse possession.
54. The facts of the case, thus, make it very clear that the
appellants were never able to establish their title before the
Civil Court, or before the High Court in the earlier rounds of
litigation and the matter was remanded back to the ASI, only to
ensure that opportunity of personal hearing is granted to all the
occupants and principles of natural justice and fairplay are
followed.
55. It is an undisputed fact that the D‟ Eremao Cemetery
(which the unauthorized occupants call as Kishan Ganj, Delhi)
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ROHELLA
Signing Date:29.08.2023
18:42:38
was declared as protected monument under the Ancient
Monuments Preservation Act, 1904 (Act of 1904). Vide
Notification No.7331 dated 13.12.1922, published in the
Gazette of India on 23.12.1922, the D‟ Eremao Cemetery was
declared as a protected monument under the Act of 1904.
56. By virtue of the enactment of the Ancient and Historical
Monuments and Archeological Sites and Remains (Declaration
of National Importance) Act, 1951, certain specified
monuments mentioned in Part-A States and Part-B States - as
described in the Schedules to the Act, were declared to be
monuments of national importance and deemed to be protected
under the Act of 1904.
57. The facts further reveal that with coming into force of the
States Reorganisation Act, 1956, a provision was made for the
continued protection of those monuments that had been
declared to be protected under the provisions of the Act of 1904
in Part-C States. With coming into force of the AMASR Act,
1958, by virtue of Section 3 thereof, monuments that had been
declared to be of national importance under Section 126 of the
States Reorganisation Act, 1956 were deemed to be ancient and
historical monuments, or archeological sites and remains
declared to be of national importance for the purposes of the
AMASR Act, 1958. The D‟ Eremao Cemetery, thus, became a
monument of national importance protected by the provisions
of the AMASR Act, 1958, and the provisions thereof apply with
full force.
58. The aforesaid order passed by the Director General, ASI
makes it very clear that D‟ Eremao Cemetery is a protected
monument, and therefore, the Central Government being its
rightful owner has complete dominion over it and it is certainly
competent to free it from encroachments by following due
process of law.
59. The facts of the case read with the order passed by the
Director General, ASI further reveal that the documents filed
by Luice M. Jacob included Jamabandi for the years 1976-77,
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ROHELLA
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1977-78, 1978-79, 1988-89, 1989-1990 and under the
ownership column the name of owner is correctly reflected as
„Government of India‟, and therefore, the Revenue record also
establishes that it is the Government of India which is the
owner/ titleholder of the property in question.
60. It is true that the appellants have filed Voter ID Cards,
Aadhaar Cards, Ration Cards, Water/ Sewer/ Electricity
connection papers, however, the said documents cannot decide
the title of the property.
61. Not only this, in the considered opinion of this Court, the
title dispute cannot be adjudicated nor decided in exercise of
writ jurisdiction and merely because it has been alleged that
the appellants are in possession of the property which is part of
the D‟ Eremao Cemetery, they cannot be declared as titleholder
on account of adverse possession.
62. The Hon‟ble Supreme Court in the case of Dwarka
Prasad Agarwal Vs. B.D. Agarwal, (2003) 6 SCC 230, in
Paragraph 28 has held as under:
"28. A writ petition is filed in public law remedy.
The High Court while exercising a power of
judicial review is concerned with illegality,
irrationality and procedural impropriety of an
order passed by the State or a statutory authority.
Remedy under Article 226 of the Constitution of
India cannot be invoked for resolution of a private
law dispute as contradistinguished from a dispute
involving public law character. It is also well
settled that a writ remedy is not available for
resolution of a property or a title dispute.
Indisputably, a large number of private disputes
between the parties and in particular the question
as to whether any deed of transfer was effected in
favour of M/s Writers & Publishers Pvt. Ltd. as
also whether a partition or a family settlement was
arrived at or not, were pending adjudication
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ROHELLA
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before the civil courts of competent jurisdiction.
The reliefs sought for in the writ petition primarily
revolved around the order of authentication of the
declaration made by one of the respondents in
terms of the provisions of the said Act. The writ
petition, in the factual matrix involved in the
matter, could have been held to be maintainable
only for that purpose and no other."
(Emphasis supplied)
63. In light of the aforesaid, as the appellants are claiming
title of a property, a writ remedy is not available to them for
resolving the title dispute. It is pertinent to note that the issue
qua the title of the writ Petitioner in W.P.(C.) No. 8203/2018
Luice M. Jacob already stands settled by the Courts in the civil
suit; first appeal and second appeal against him.
64. The Hon‟ble Supreme Court in the case of State of
Rajasthan Vs. Bhawani Singh, 1993 Supp (1) SCC 306, in
Paragraph No. 7 has held as under:
"7. Having heard the counsel for the parties, we
are of the opinion, that the writ petition was
misconceived insofar as it asked for, in effect, a
declaration of writ petitioner's title to the said plot.
It is evident from the facts stated hereinabove that
the title of the writ petitioner is very much in
dispute. Disputed question relating to title cannot
be satisfactorily gone into or adjudicated in a writ
petition."
(Emphasis supplied)
65. The Hon‟ble Supreme Court in the aforesaid case has
held that disputed question relating to title cannot be
satisfactorily gone into or adjudicated in a Writ Petition.
66. In Shubhas Jain Vs. Rajeshwari Shivam & Ors, 2021
SCC OnLine SC 562, the Hon‟ble Supreme Court has held as
under:
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"26. It is well settled that the High Court
exercising its extraordinary writ jurisdiction
under Article 226 of the Constitution of India,
does not adjudicate hotly disputed questions of
facts. It is not for the High Court to make a
comparative assessment of conflicting technical
reports and decide which one is acceptable"
(Emphasis supplied)
67. The Hon‟ble Supreme Court in the aforesaid case has
held that in case of disputed questions of facts, the remedy
under Article 226 of the Constitution of India is not the proper
remedy.
68. In Himmat Singh Vs. State of Haryana, (2006) 9 SCC
256, the Hon‟ble Supreme Court has taken a similar view and
has held as under:
"18. The said contention again has no force.
Such a contention has been raised only in "the
grounds" and the contents thereof have not been
verified. In the grounds of a writ petition only a
question of law can be raised and not a statement
of fact. No statement has been made in the body of
the writ petition. The statement made in the said
grounds was also not verified in accordance with
the writ rules. Despite the same, as we have
noticed hereinbefore, the fifth respondent in his
affidavit denied or disputed the contents thereof.
Whether the statement of the appellant or the fifth
respondent was correct or not could not ordinarily
be decided in a writ proceeding. It is well known
that in a writ petition ordinarily such a disputed
question of fact should not be entertained. The
High Court arrived at a finding of fact on the basis
of affidavit evidence."
(Emphasis supplied)
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ROHELLA
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69. In M/s Magadh Sugar & Energy Ltd. Vs. The State of
Bihar & Ors., Civil Appeal No. 5728 of 2021 decided on
24.09.2021, the Hon‟ble Supreme Court has held as under:
"19. ... ... ... Recently, in Radha Krishan
Industries v. State of Himachal Pradesh & Ors21 a
two judge Bench of this Court of which one of us
was a part of (Justice DY Chandrachud) has
summarized the principles governing the exercise
of writ jurisdiction by the High Court in the
presence of an alternate remedy. This Court has
observed:
"28. The principles of law which emerge are that:
(i) The power under Article 226 of the
Constitution to issue writs can be exercised
not only for the enforcement of fundamental
rights, but for any other purpose as well;
(ii) The High Court has the discretion not to
entertain a writ petition. One of the
restrictions placed on the power of the High
Court is where an effective alternate remedy
is available to the aggrieved person;
(iii) Exceptions to the rule of alternate remedy
arise where
(a) the writ petition has been filed for the
enforcement of a fundamental right
protected by Part III of the Constitution;
(b) there has been a violation of the
principles of natural justice;
(c) the order or proceedings are wholly
without jurisdiction; or
(d) the vires of a legislation is challenged;
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(iv) An alternate remedy by itself does not divest
the High Court of its powers under Article
226 of the Constitution in an appropriate
case though ordinarily, a writ petition
should not be entertained when an
efficacious alternate remedy is provided by
law;
(v) When a right is created by a statute, which
itself prescribes the remedy or procedure for
enforcing the right or liability, resort must
be had to that particular statutory remedy
before invoking the discretionary remedy
under Article 226 of the Constitution. This
rule of exhaustion of statutory remedies is a
rule of policy, convenience and discretion;
and
(vi) In cases where there are disputed questions
of fact, the High Court may decide to
decline jurisdiction in a writ petition.
However, if the High Court is objectively of
the view that the nature of the controversy
requires the exercise of its writ jurisdiction,
such a view would not readily be interfered
with."
(Emphasis supplied)"
70. In light of the aforesaid judgments, the disputed question
of title qua the remaining unauthorized occupants barring
Luice M. Jacob cannot be adjudicated in a writ petition and the
only remedy available to the appellants was to file a Civil Suit.
71. In the considered opinion of this Court, by taking a plea
of adverse possession, the appellants cannot claim title in
respect of a land which is part of a protected monument of
national importance and, therefore, this Court does not find any
reason to interfere with the order passed by the Director
General, ASI dated 10.01.2017 or with the judgment passed by
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the learned Single Judge. The writ appeal is, accordingly,
dismissed."
8. Learned counsel for the appellant/ writ petitioner has vehemently
argued before this Court that the Director General, ASI has passed the order
dated 01.05.2018 impugned in the underlying writ petition, without issuing
any show-cause notice and without hearing the appellant/ writ petitioner at
any point of time.
9. The order passed by the Director General, ASI reveals that earlier also
Mr. Luice M. Jacob has preferred a writ petition being W.P.(C.) No.
11145/2016 titled Luice M. Jacob Vs. Union of India & Ors before this
Court and the same was disposed of by an order dated 22.11.2017 with a
direction to the respondent therein to hear the writ petitioner therein
(appellant herein) and to pass an order in accordance with law. In pursuance
of the order dated 22.11.2017, an opportunity of hearing was granted to the
appellant on 29.12.2017; oral submissions as well as written-submissions
were made by the writ petitioner/ appellant; and thereafter the Director
General, ASI has finally passed an order dated 01.05.2018. The same is
reproduced as under:
" The D‟ Eremao Cemetery located at Kishan Ganj, Delhi,
which is declared as monument of national importance vide
Notification No.7331 dated 13.12.1922 and published in the
Gazette of India on 23.12.1922.
After inspection by the officials of Delhi Circle, ASI at
the D‟ Eremao Cemetery you immediately filed a civil suit in
the year 2005 before the Tis Hazari Court, Delhi bearing
No.87/2005 "Luice M Jacob Versus Union of India & others"
for seeking relief of declaring you as owner of the aforesaid
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ROHELLA
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cemetery by way of adverse possession etc. This civil suit was
renumbered as No.273/2009 "Luice M. Jacob Versus Union of
India & others" which was disposed of by the Hon'ble Court
vide its judgment and order dated 8.5.2014 with directions to
the Archaeological Survey of India to reconsider whether the
suit premises is a protected monument or not.
Further, you had filed an Appeal bearing No.35/2015
before the Tis Hazari Court, Delhi which was also dismissed on
14.12.2015 against you with the observation that the Plaintiff
cannot be permitted to use the place of adverse possession to
obtain the decree of declaration in the fact of the matter.
Thereafter, you had filed another petition in the Hon'ble
Delhi High Court RSA NO.159/2016) to seek direction from the
Hon'ble Court regarding ownership rights of the D‟ Eremao
Cemetery. The Hon'ble court vide his order dated 19.07.2016
dismissed your appeal.
On 20.9.2016 vacation order was issue to you to remove
your unauthorized occupation from D‟ Eremao Cemetery, a
centrally protected monument against which you had initiated
legal proceedings titled as "Luice M Jacob Vs. Union of India
& Others" before the Hon‟ble High Court of Delhi (W.P.(C)
NO.11145/2016 & C.M. No.43571/2016) in order to avoid
eviction of your illegal occupation.
The said petition has also been disposed of by the
Hon'ble Court vide its order dated 22.11.2017 with a directions
that the Petitioner may be heard and order may be passed by
the same officer who exercises the power of the Central
Government.
In pursuance to the order dated 22.11.2017 hearing was
given to you on 29.12.2017 wherein you made oral and written
submissions.
In the written submission you have argued that the land
i.e. D‟ Eremao Cemetery of Kishan Ganj, Delhi is a private
land owned and possessed by Christian Community. Your
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argument found without base, wrong and therefore denied. The
land in your possession is a part of centrally protected
monument/area of D‟ Eremao Cemetery and furthermore, no
single document has been produced or submission by you to
substantiate your claim. Not only this, there are judicial
findings against you that ownership/ title of the suit property is
with Government of India which has already attained finality.
Further, the stand taken by you in your reply that the
Christian family members, relation are in possession of the
cemetery and they have been enjoying the same without any
interference or obstruction is incorrect and denied. Officials of
Delhi Circle, ASI inspected the D' Eremao Cemetery and show
cause notices were issued on 13.09.2005 to all defaulters for
eviction of encroachment, men and material.
Regarding your objection that the afore-noted cemetery
is not an D' Eremao Cemetery and it is an Armenian Cemetery,
it is stated here that the similar objection was also raised by
you in your civil suit (CS/87/2005) in First Appeal (RCA
NO.35/2015) and Second Appeal bearing RSA 159/2016 your
argument in these cases have already been dealt in detail by the
Hon'ble Competent Courts, and it was categorically held by the
Hon'ble Courts that the land records clearly mentioned the
owner as "sarkar daulatmadar" i.e. the Government and further
holds that the suit property was allotted by the Union of India
to Armenian Association. Therefore, your objection to the effect
that the land in illegal occupation is not a part of D' Eremao
Cemetery is meritless and rejected.
In your written submission it is mentioned that your
families living in the house constructed over this property with
water and electricity connections and having Voter I.D. Cards,
Ration Cards, Adhar Cards and Birth Certificates etc.
mentioning there on Christian Compound, Kishan Ganj, Delhi
as addressed. The electricity connection, Voter-ID Card,
Election Card, Ration Card, etc. in no way construed your right
and title over the land in question and justify the illegal
construction.
LPA 598/2023 Page 16 of 19
Signature Not Verified
Digitaaly Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:29.08.2023
18:42:38
The D‟Eremao Cemetery has been declared as a
protected monument under provisions of the Ancient
Monuments Preservation Act, 1904. In 1951, the Ancient and
Historical Monuments and Archaeological Sites and Remains
(Declaration of National Importance) Act, 1951 was enacted.
By virtue of the Act of 1951 all the monuments/sites declared
protected by the Act of 1951 and deemed to be declared
protected under the Act of 1951.
With the coming in force of the Ancient Monuments and
Archaeological Sites Land Remains Act, 1958, by virtue of
Section3, all monuments that had been declared protected
under the Act of 1951, brought under the preview of ct of 1958
and deemed to be of national importance under the Act of 1958.
In this manner, the D‟Eremao Cemetery became a
monument of national importance under the Act of 1958, and
therefore all provisions of Act of 1958 shall apply on the said
monument with full force. As per the Act of 1958, any kind of
construction within the premises of centrally protected
monument taken up without the permission of the Central
Government is illegal and without any authority of law.
It is the primary duty of the A.S.I. to ensure that the
monuments of national importance are preserved and protected
for posterity and that no person has any right to desecrate and
deface these monuments of national importance.
Since you failed to show or produce any right, title or
interest on your part for your unauthorized occupation of the
premises in question which is a part of D‟ Eremao Cemetery, a
centrally protected monument, your status, is therefore that of a
mere encroacher. As such, you cannot be allowed to occupy on
the part of the protected monument and its premises and all
contentions raised by you in your replies are therefore, without
any merit and accordingly rejected.
Therefore, you are hereby directed to remove your
belongings including men and material from the part of the D‟
Eremao Cemetery, a centrally protected monument,
LPA 598/2023 Page 17 of 19
Signature Not Verified
Digitaaly Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:29.08.2023
18:42:38
unauthorizedly under your occupation and demolishthe
constructions which you have raised unauthorizedly and
remove the malba/material.
You are directed to immediately act accordingly pursuant
to this order within three weeks and to quit and vacate the
occupied portions of the premises of the said monument.
Sd/-
Director General
Archaeological Survey of India
1/5/18"
10. In the considered opinion of this Court, the order dated 01.05.2018
passed by the Director General, ASI does not warrant any interference. The
appellant before this Court has preferred a Civil Suit before Tis Hazari
Courts, Delhi being Suit No.87/2005 (renumbered as Suit No.273/2009)
which was dismissed vide judgment dated 08.05.2014. The appellant herein
preferred a first appeal being RCA No.35/2015 which was dismissed on
14.12.2015. The appellant herein challenged the same by way of second
appeal being RSA No.159/2016 which was dismissed by this Court vide
order dated 19.07.2016. The appellant herein was claiming title of the said
property on the ground of adverse possession in the aforesaid proceedings,
however, failed to establish his title.
11. In the considered opinion of this Court, the appellant has not been
able to establish his title in the Civil Suit and the subsequent appeals and the
learned Single Judge has rightly declined to interfere in the disputed
question of title qua Luice M. Jacob in a writ petition in light of the remedy
of filing of Civil Suit already having been availed by Luice M. Jacob.
LPA 598/2023 Page 18 of 19
Signature Not Verified
Digitaaly Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:29.08.2023
18:42:38
12. This Court also does not find any reason to interfere with the order
passed by the learned Single Judge to the extent the present appellant Luice
M. Jacob is concerned. The principles of natural justice have been
followed; Luice M. Jacob was granted an opportunity of hearing; written-
submissions were also considered by the Director General, ASI before
passing the order dated 01.05.2018; and by taking plea of adverse
possession, the appellant cannot claim title in respect of a land which is part
of a protected monument of national importance and, therefore, this Court
does not find any reason to interfere with the order passed by the Director
General, ASI dated 01.05.2018, or with the judgment dated 11.07.2023
passed by the learned Single Judge.
13. The present Letters Patent Appeal is, accordingly, dismissed.
SATISH CHANDRA SHARMA, CJ
SANJEEV NARULA, J.
AUGUST 22, 2023/B.S. Rohella LPA 598/2023 Page 19 of 19 Signature Not Verified Digitaaly Signed By:BHUPINDER SINGH ROHELLA Signing Date:29.08.2023 18:42:38