Delhi High Court
Shiv Narain Sharma And Anr. vs Kirpa Ram And Ors. on 31 March, 2022
Author: Prathiba M. Singh
Bench: Prathiba M. Singh
Signature Not Verified
Digitally Signed By:Devanshu
Signing Date:03.04.2022
13:22:30
$~2(SB) to 5 (SB) & items 18 to 27 & 30
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 31st March, 2022
3(SB)
+ FAO 36/2021 & CM APPLs.2914/2021, 10442/2021, 10444/2021,
20904/2021, 23819/2021, 25868/2021, 25869/2021, 25870/2021,
25884/2021, 25885/2021, 26495/2021, 29121/2021, 38063/2021,
38289/2021, 39643/2021, 43944-46/2021, 3172/2022, 3455/2022,
5641/2022, 5642/2022, 5803/2022, 5865/2022, 7745/2022,
13472/2022, 16153/2022
NEETA BHARDWAJ & ORS. ..... Appellants
versus
KAMLESH SHARMA ..... Respondent
With
+ CM (M) 323/2021 & CM APPL. 14178/2021, 20945/2021,
20949/2021, 40269/2021
+ CM (M) 575/2021 & CM APPL.43796/2021
+ CONT.CAS(C) 614/2021
+ CS (OS) 527/2021 & I.As.1717-18/2022
+ CS (OS) 533/2021 & I.As.1721-22/2022
+ CS (OS) 538/2021 & I.As.1725-26/2022
+ CS (OS) 541/2021 & I.As.1723-24/2022
+ CS (OS) 544/2021 & I.As.1719-20/2022
+ CS (OS) 547/2021 & I.As.1715-16/2022
+ CS (OS) 588/2021
+ CS (OS) 55/2022
+ CS (OS) 56/2022
+ CS (OS) 57/2022
+ CS(OS) 2499/2010
Appearances:-
Mr. R. K. Bhardwaj, Advocate for Appellant in FAO 36/2021.
(M:9312710547)
FAO 36/2021 & connected matters Page 1 of 13
Signature Not Verified
Digitally Signed By:Devanshu
Signing Date:03.04.2022
13:22:30
Mr. Kush Bhardwaj, Advocate. (M:9891074686)
Mr. Sarvesh Bhardwaj, Advocate for R-9. (M:9350301058)
Mr. Arun Birbal and Mr. Sanjay Singh, Ms. Sonia Mann, Ms. Sonia
Singhani & Ms. Vidhi Gupta, Advocates for DDA. (M:9958118327)
Mr. Siddharth Panda, Standing Counsel along with Mr. Ritank Kumar
Advocate for SDMC. (M:9891488088)
Ms. Sangeeta Bharti, Standing Counsel for DJB. (M:9811112863)
Ms. Samapika Biswal & Ms. Shambhavi Kala, Mr. Kartikeya Sharma,
Advocates for Ld. Administrator (M-9818668876)
Ms. Mini Pushkarna, Standing Counsel, DUSIB with Ms. Latika Malhotra &
Ms. Shikha Baisoya, Ms. Khushboo Nahar, Advocates (M-9810674872)
Mr. Nitin Jain, Mr. Vishal Chauhan, Mr. Harshil Gupta, Mr. Himanshu
Chauhan, Ms. Shiuya Sharma, Advocates for Shopkeepers.
Mr. Rohit Kishan Naagpal & Mr. Dipanshu Gaba, Advocate for R-1to4 &6.
(M:9873730191)
Mr. U.M. Tripathi, Mr. Birendra Kumar Pandey and Mr. Prashant Leo,
Advocates for Defendant in Item 20. (M:9818403060)
Mr. Vivek Kumar Singh, Advocate for Respondents in Item Nos.18, 19 &
20. (M:8860456420)
Mr. D.K. Singhal, Advocate for R-59, Mr. Inderjeet. (M:9811035029)
Mr. Kamal Mehta, Advocate for D-10,in-person, in item 24.
(M:9810249271)
Mr. Balbir, SHO & Ms. Manu Dev, SI (PS: Kalkaji)
Ms. Esha Pandey, DCP South-East District, Delhi.
CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J. (Oral)
1. This hearing has been done through hybrid mode.
2. These matters pertain to the Kalkaji Mandir, which this Court has been hearing from time to time. These are part-heard matters.
3. Vide previous order dated 22nd March, 2022, eviction of unauthorized occupants of jhuggis and occupants of dharamshalas was directed, and directions were also issued for allocation of temporary tables for shops to be set up during the Navratra period. Pursuant to the said order, FAO 36/2021 & connected matters Page 2 of 13 Signature Not Verified Digitally Signed By:Devanshu Signing Date:03.04.2022 13:22:30 this Court has been informed that an SLP being SLP No.9073/2022 titled Nathi Ram Bhardwaj & Ors. v. Neeta Bhardwaj & Ors. was preferred by some occupants of dharamshalas challenging the order dated 27th September, 2021, and subsequent orders passed in the present appeal. In the said SLP, the Supreme Court vide order dated 25th March, 2022, has directed as under:
"1. Permission to file the Special Leave Petitions granted.
2. We are not inclined to entertain the Special Leave Petitions under Article 136 of the Constitution. The Special Leave Petitions are accordingly dismissed.
3. We grant liberty to the petitioners to move the Administrator appointed by the High Court with their grievances. It would be open to the Administrator to place a report before the High Court for suitable directions. However, maintenance of the temple and its surroundings in a dignified manner in the interests of the devotees must be of paramount importance.
4. Pending application, if any, stands disposed of."
4. Ms. Biswal, ld. Counsel appearing for the ld. Administrator, also submits that three LPAs being LPA No.170/2022 titled Sohan Lal Bhardwaj v. Neeta Bhardwaj, LPA No.171/2022 titled Rahul Bhardwaj v. Neeta Bhardwaj & Ors., and LPA No.172/2022 titled Vinayak Bhardwaj v. Neeta Bhardwaj have been filed by the occupants of the dharamshalas, against various orders of this Court, being orders dated 7th December, 2021, 9th December, 2021, 21st December, 2021, 14th January, 2022, 1st February, 2022, 15th February, 2022 and 2nd March, 2022, 15th March, FAO 36/2021 & connected matters Page 3 of 13 Signature Not Verified Digitally Signed By:Devanshu Signing Date:03.04.2022 13:22:30 2022 and 22nd March, 2022. Out of these three LPAs, ld. Counsel submits that the order dated 29th March, 2022 has been passed in LPA No.172/2022. The said order reads as under:
"3. The appellant in the present appeal has challenged the orders dated 7th December, 2021, 9th December, 2021, 21st December, 2021, 14th January, 2022, 1st February, 2022, 15th February, 2022 and 2nd March, 2022 passed by the learned Single Judge in FAO 36/2021, CM(M) 323/2021, CM (M) 575/2021 and CONT.CAS (C) 614/2021.
4. When this appeal came up before this Court notice was issued in the appeal to the respondents as also to the SDMC, Delhi Jal Board, DDA, Govt. of NCT of Delhi and Commissioner of Police as the five Authorities were represented before the learned Single Judge. The appellant was directed to file amended memo of parties and the matter is now listed on 22nd April, 2022 along with two similar connected appeals. Thereafter the appellant filed the present application seeking stay of the orders dated 15th March, 2022 and 22nd March, 2022 to the extent directions for eviction of the occupants of the Dharamshala were issued by the learned Single Judge.
XXX
10. As noted above, the order dated 15th March, 2022 passed by the learned Single Judge permits one representative of the each family of the occupants to meet the learned Administrator. The said meeting cannot have any other purpose except hearing the representatives so that they can express their views which will be duly considered by the learned Administrator.
11. In view of the fact that two important facts are undisputed in this appeal, firstly, ownership rights in the property and secondly, that the re-development of the Kalkaji Mandir is essential which is not disputed by any of the parties, it would be appropriate to give fair FAO 36/2021 & connected matters Page 4 of 13 Signature Not Verified Digitally Signed By:Devanshu Signing Date:03.04.2022 13:22:30 chance to the appellant/ applicant to appear before the learned Administrator to raise his concern. The learned Administrator is thus requested to give personal hearing to the applicant on 31st March, 2022, when the appellant/ applicant will be at liberty to give written representation along with necessary documents, if so desires. The learned Administrator on hearing the appellant/ applicant will submit a report to the learned Single Judge so that suitable directions if necessary are issued by the learned Single Judge.
12. Needless to note, in case the applicant has any further grievance after hearing is afforded by the learned Administrator to the applicant on 31st March, 2022, the applicant would be at liberty to approach the learned Single Judge.
13. It is further clarified that as regards the appellant/ applicant is concerned, he will not be evicted from this premises till 4th April, 2022.
14. Since the appellant/ applicant was not a party before the learned Single Judge, these directions are passed in the application without prejudice to the rights and contentions of either of the parties in the appeal pending before this Court."
5. Pursuant to the above orders of the Supreme Court and the Division Bench of this High Court, ld. Counsel submits that the ld. Administrator has received one representation from an occupant of a dharamshala which is under consideration and it is expected that certain other occupants may also file such representations.
6. Let the ld. Administrator consider the said representations and place a report before this Court in this regard, within a period of two weeks from today.
Eviction of unauthorized occupants of jhuggis and occupants of FAO 36/2021 & connected matters Page 5 of 13 Signature Not Verified Digitally Signed By:Devanshu Signing Date:03.04.2022 13:22:30 dharamshalas from the Kalkaji Mandir premises
7. Pursuant to the previous order dated 22nd March, 2022, the ld. Administrator as also the various authorities, submit that the eviction of the occupants of Jhuggis has been undertaken. In this regard, the status report on behalf of the Delhi Police dated 29th March, 2022, filed by the DCP, South East Delhi, has also been placed before the Court. The said report submitted by the Delhi Police is also confirmed by the ld. Administrator. Insofar as the eviction of the illegal occupants of the jhuggis as also the occupants of the dharamshalas, is concerned, the status report records as under:
"In Compliance of the above directions of this Hon'ble court, Ld. Administrator issued a notice vide Ref. No. Notice/SDMC/Delhi Police/DUSIB/85 Dated 23.3.22 through which following directions were issued in Para 3 & 4.
"3. The SDMC is directed to demolish all the jhuggis in Mandir premises as well. SDMC to also take steps for removal of all occupants from the jhuggis and Dharamshalas in the presence of police force. Kindly make necessary arrangements in this regard.
4. The Delhi Police is directed to provide the necessary force to SDMC for the eviction and removal of all the occupants residing in the mandir premises."
In compliance of the directions of this Hon'ble court and Ld. Administrator, sufficient police arrangement was made for 24.3.2022 & 25.3.22 under the direct supervision of Joint CP/Southern Range for providing police assistance to SDMC officials during demolition/eviction drive in Kalkaji temple premises. In furtherance of the same, on 24.3.22, all 42 un- authorized jhuggis were demolished and 16 Dharamshalas were sealed by SDMC officials and on 25.3.22, remaining one Dharamshala was sealed. Due FAO 36/2021 & connected matters Page 6 of 13 Signature Not Verified Digitally Signed By:Devanshu Signing Date:03.04.2022 13:22:30 to the proper law & order arrangement of the police, whole eviction/demolition program has been completed peacefully and no untoward incident has been reported.
It is further submitted that adequate Police assistance is provided to the civic agencies and Ld. Administrator as and when required for Kalkaji temple. Any further direction passed by this Hon'ble court in the matter shall be complied with meticulously."
8. From the above report, it is clear that 42 unauthorized jhuggis have been demolished and 17 dharamshalas have already been sealed.
9. Since all the unauthorized occupants of the jhuggis have already been evicted and jhuggis have also been partially demolished, let the SDMC, DDA and DJB, under directions of the ld. Administrator, take steps for removing the malba (debris), levelling of the land, and all other unwanted garbage, etc., from the Kalkaji Mandir premises, excluding the area in which the remaining dharamshalas are located. This entire activity be completed by 15th April, 2022 and a report be placed before the Court by the SDMC, DDA, and DJB, on the next date, so that the redevelopment plan can be implemented thereafter.
10. Insofar as the remaining dharamshalas are concerned, the representations which may be filed by any dharamshala occupants, in terms of the orders above, shall be considered by the ld. Administrator. Further orders in respect of such dharamshalas shall be passed by this Court, after the report of the ld. Administrator is received.
11. Any of the occupants of dharamshalas and unauthorized occupants of jhuggis who do not make any representations or have not been given any further time to occupy the premises, shall be evicted with the help of the FAO 36/2021 & connected matters Page 7 of 13 Signature Not Verified Digitally Signed By:Devanshu Signing Date:03.04.2022 13:22:30 Delhi Police and all other authorities including DDA, SDMC, etc., under directions of the ld. Administrator, on or before 15th April, 2022. Ms. Pandey, DCP, South-East Delhi, shall inspect the Kalkaji Mandir premises within next one week in this regard. Ms. Meenu Chaudhary, Joint Commissioner of Police, Southern Range, Ms. Esha Pandey, DCP, South- East District, Delhi, and SHO, Kalkaji shall be the officers responsible for implementing this direction, on behalf of the Delhi Police. Erection of temporary shops and kiosks for the purpose of Navratras
12. Pursuant to the previous order dated 22nd March, 2022, this Court had directed that temporary tables may be allowed to be put up by the ld. Administrator in any suitable part of the Kalkaji Mandir premises, in consultation with the Architect.
13. The Architect is present in Court today. Ld. Administrator has also submitted a status report before the Court today. The same has been perused.
14. The Architect submits that the temporary space for tables in the Ram Piyao parking site, can be allotted to the shopkeepers who are verified and who deposit the sum of Rs.15,000/-. The ld. Administrator has already issued a public notice to this effect on 25th March, 2022. The Architect submits that a total of 60 table spaces can be allotted in the Ram Piyao parking site, which can be operational with effect from 2nd April, 2022.
15. Accordingly, the Architect in coordination with the ld. Administrator shall identify the 60 table spaces. Pursuant thereto, the shopkeepers whose identity has been verified as part of the list of 105 shopkeepers and who deposit the sum of Rs.15,000/- shall be permitted to set up their own tables, cupboards etc., so as to enable them to sell phool, prasad, puja samagri, puja utensils and other gift items, etc., in terms of paragraph 15 of the FAO 36/2021 & connected matters Page 8 of 13 Signature Not Verified Digitally Signed By:Devanshu Signing Date:03.04.2022 13:22:30 previous order dated 22nd March, 2022.
16. As per the status report submitted by the Administrator, a total of 105 shopkeepers have been verified, out of which 98 shopkeepers have also deposited a sum of Rs.30,000/-. Insofar as the payment of Rs.15,000/- for obtaining temporary shop area where tables may be set up for the duration of the Navratras is concerned, 12 shopkeepers have deposited the said amount. Apart from these 12 shopkeepers who have deposited Rs.15,000/-, if any of the other shopkeepers from the 105 verified shopkeepers, wish to set up their table spaces in the said premises, they shall make a deposit of Rs.15,000/- to be entitled for allocation of the table space by the ld. Administrator. The said deposits shall be made before the space can be allotted to them.
17. Mr. Nitin Jain, ld. Counsel, appearing for some of the shopkeepers, expresses apprehension that the Ram Piyao parking site may not have adequate footfall and therefore it may not be commercially viable to set up shops there during Navratras. In response to this, the Architect - who is present in Court - as also the ld. Counsel for the Administrator submit that representations of the shopkeepers expressing this concern have been received. However, under the present circumstances where the rest of the Kalkaji Mandir premises is in the midst of redevelopment, the Ram Piyao parking site seems to be the most feasible site for allotment of the table spaces, as it is closest to the metro station through which the Kalkaji Mandir is accessed by the devotees.
18. Accordingly, the verified shopkeepers that deposit the amount of Rs.15,000/- shall be allocated the table spaces, for selling their articles and wares during Navratras in the Ram Piyao parking site. The said spaces for putting up the tables shall be allotted by the ld. Administrator in consultation FAO 36/2021 & connected matters Page 9 of 13 Signature Not Verified Digitally Signed By:Devanshu Signing Date:03.04.2022 13:22:30 with the Architect, by the end of the day on 2nd April, 2022, considering that the Navratras are beginning from 2nd April, 2022.
19. It is made clear that this allocation of the table spaces is purely temporary in nature and shall create no right, title and/or interest over the allotted area, in the said allottees.
20. To enable the Architect to take steps for creation of the temporary table spaces in the Ram Piyao parking site, a sum of Rs.1.5 lakhs be released to the Architect from the "Registrar General, Delhi High Court, A/c Kalkaji Mandir Fund" vide A/c No.15530110155950 [IFSC Code UCBA0001553] (hereinafter "Kalkaji Mandir Fund"). Erection of temporary shops and kiosks
21. The Architect has submitted a Brief Project Report dated 31st March, 2022 in respect of the temporary shops and kiosks which are to be erected. It is submitted on behalf of both the Architect and the ld. Administrator that a total of 122 shops can be created in the land belonging to the DDA. The Architect has submitted that the timeline for erection of the temporary shops/kiosks would be a total period of three months.
22. In addition, requests have been received by the ld. Administrator from some shopkeepers, who were earlier paying tehbazari, for erection of some larger shops also, which may be allotted upon payment of higher construction cost and license fee. Accordingly, the Architect submits that 16 large shops can also be created and the plan for the same is included in the Project Report submitted to the Court today.
23. Accordingly, let the 16 larger shops be also erected as per the Report submitted today. Insofar as the cost for allocation of these 16 large shops is concerned, the cost payable by the allottees for the same shall be Rs.1 lakh FAO 36/2021 & connected matters Page 10 of 13 Signature Not Verified Digitally Signed By:Devanshu Signing Date:03.04.2022 13:22:30 per shop, keeping in mind the cost of construction which has been informed to the Court today. Upon the sum of Rs.1 lakh being deposited, the shopkeepers' identities shall be verified by the ld. Administrator and the final list of the allottees of 16 shops shall also be placed before the Court by the next date of hearing.
24. It is directed that the allocation of temporary shops and kiosks in terms of the Brief Project Report which has been submitted today, may be commenced immediately after the levelling and cleaning of the land takes place. All the authorities, including the DDA, SDMC, DJB, BSES, etc., shall cooperate with the ld. Administrator and Architect for ensuring that the temporary shops and kiosks are created as per the Brief Project Report, and within the timelines, submitted to the Court today.
25. At this stage, a mention has been made on behalf of Mr. Radhey Shyam, that his representation seeking priority in allotment of shops at the Ram Piyao site and seeking that a larger area of shops be allocated to him, has been decided by the ld. Administrator, who has directed him to remove his articles and belongings within a period of three days. He submits that the time for such removal may be extended by seven days.
26. A perusal of the order of the ld. Administrator dated 30th March, 2022, handed over as part of the Report today, shows that the ld. Administrator has considered the representation of Mr. Radhey Shyam, and recommended allotment of a larger sized shop of 3.5MX 5M to him on a temporary license basis, at the adjacent site to the Lotus temple, subject to:
(i) Submission of the undertaking recorded in the order dated 09.12.2021 to the Administrator within two days.
(ii) Removal of articles and belongings of Mr. Radhey Shyam from FAO 36/2021 & connected matters Page 11 of 13 Signature Not Verified Digitally Signed By:Devanshu Signing Date:03.04.2022 13:22:30 his present shop within three days.
(iii) Payment of Rs.60,000/- as one-time cost for erection of temporary shop of size 3.5MX 5M in the Kalkaji Mandir Fund.
27. Since extension of time is sought for removing the articles and belongings, and the ld. Administrator has already considered Mr. Radhey Shyam's representation, the following directions are issued:
(i) The undertaking in terms of the ld. Administrator's order dated 30th March, 2022, shall be furnished by Mr. Radhey Shyam to the ld. Administrator by the end of working hours, on 4th April, 2022.
(ii) Subject to the said undertaking being given, the articles and the belongings of Mr. Radhey Shyam shall be removed from the said premises by 5th April, 2022.
(iii) The payment of Rs.1 lakh, instead of Rs.60,000/- as directed by the ld. Administrator, as the one-time cost for erection of the temporary shop, shall be paid by Mr. Radhey Shyam by 10th April, 2022 in the Kalkaji Mandir Fund.
(iv) The remaining conditions of the ld. Administrator's order shall also be complied with by Mr. Radhey Shyam by 5th April 2022.
(v) If the undertaking is not given by the end of working hours of 4th April, 2022, the ld. Administrator is free to take action, in accordance with law, for removal of the articles and demolition of the shop of Mr. Radhey Shyam.
28. The order of ld. Administrator dated 30th March, 2022 is modified to the above effect.
29. This Court also notes that in terms of order dated 1st February, 2022, Mr. Radhey Shyam was to file a complete account of all the amounts FAO 36/2021 & connected matters Page 12 of 13 Signature Not Verified Digitally Signed By:Devanshu Signing Date:03.04.2022 13:22:30 deposited by him before the Trial Court and the photographs of the premises occupied by him within two weeks. Mr. Gaurav Sharma, on behalf of Mr. Radhey Shyam, submits that the said details have already been filed vide Diary No.167/66/22 dated 12th February, 2022, by Mr. Radhey Shyam. The same shall be considered on the next date. The data submitted by Mr. Radhey Shyam be verified and the Registry to report if the amounts stated to be deposited by him in Suit No.386/76 titled Pyare Lal v. Ram Nath, before the ld. Civil Judge, Tis Hazari Courts, Delhi, have been received into the Kalkaji Mandir Fund, or not.
30. Some concerns have been raised by the parties regarding hawkers occupying the main road right outside the Kalkaji Mandir premises. If there are hawkers and vendors who have been given permission for such activities, the SDMC may submit a report in this regard before the ld. Administrator for appropriate orders, by 7th April, 2022.
31. List all these matters on 13th April, 2022 at 2:30 p.m. PRATHIBA M. SINGH JUDGE MARCH 31, 2022/ Rahul/aman/ad/ms FAO 36/2021 & connected matters Page 13 of 13