Delhi District Court
Pt. Puran Prakash Dobriyal vs Union Of India on 29 August, 2024
IN THE COURT OF SWATI GUPTA-I, JSCC-ASCJ-GJ
NDD, PATIALA HOUSE COURT, NEW DELHI
Civil Suit No: 57297/2016
DLND030005322014
Pt. Puran Prakash Dobriyal
S/o Late Sh. Hari Ram
Priest, Prachin Shiv Durga Mandir,
New Moti Bagh Complex,
New Delhi. ......Plaintiff
versus
1. Union of India
Through the Secretary
Ministry of Civil Aviation,
Rajiv Gandhi Bhawan,
Safdarjung Airport,
New Delhi-110003.
2. Airport Authority of India,
Rajiv Gandhi Bhawan,
Safdarjung Airport
New Delhi-110003. ......Defendants
CS No. 57297/2016
Pt. Puran Prakash Dobriyal vs. Union of India & Anr. Page No. 1/20
Date of Institution : 12.03.2014
(More than 10 years
old)
Date on which judgment was : 17.05.2024
reserved
Date of pronouncing judgment : 29.08.2024
Decision : Suit dismissed.
Arguments addressed by : Sh. Akhilesh Pradhan
and Sh. Abhishek Rai,
Ld. Counsel for
plaintiff.
Sh. Archit Mishra and
Sh. Digvijay Rai, Ld.
Counsel for defendant
No. 2.
SUIT FOR PERMANENT INJUNCTION
JUDGMENT
1. Present suit has been filed by the plaintiff against the defendants praying for permanent injunction. The said suit has been filed in respect of one Prachin Shiv Durga Mandir and Mazar which are situated at new Moti Bagh Complex, New Delhi measuring 360 sq. yards and 156 sq. yards respectively (hereinafter referred to as the "suit property") as shown in blue colour in the site plan annexed with the plaint.
CS No. 57297/2016 Pt. Puran Prakash Dobriyal vs. Union of India & Anr. Page No. 2/202. As per the plaint, the said temple i.e. Prachin Shiv Durga Mandir is an ancient temple. It has ancient idols of God Shiv, Goddess Durga, Lord Hanuman and Lord Shani and also has Hawan Kund and idols of Sant Ravidas, which had been established prior to the year 1945. It is stated that plaintiff is a priest of the said temple and he has been looking after the Mazar for last about 20 years. Further, the said temple was renovated in the year 2008 and the said renovation work was inaugurated in the presence of the MLA Shri Ashok Ahuja.
3. It is also stated that in the year 2009, defendant No. 2 was trying to close the way/path of the said temple. But the plaintiff wrote a letter to the office of Prime Minister of India and in response he was directed to contact Ministry of Civil Aviation and officials of NBCC Ltd. Accordingly, plaintiff contacted the said organizations and way/path of the said temple was opened/constructed. Further, as per plaintiff, defendant No. 2 is trying to demolish the said temple and Mazar since the year 2012. In this regard, plaintiff wrote several letters to several authorities such as National Commission for Scheduled Caste, Member of Parliament, Ministry of State for Civil Aviation, etc. and to Sh. K. C. Singh 'Baba', who in turn requested defendant No. 2 to not demolish the same.
CS No. 57297/2016 Pt. Puran Prakash Dobriyal vs. Union of India & Anr. Page No. 3/204. As regards his possession, plaintiff has averred that the electricity connection in the temple is in the name of the plaintiff and election ID card of the plaintiff is of the address of the temple. It is also the case of the plaintiff that he had received information under the Right to Information Act from NBCC Ltd. where it was stated that two temples were existing in the campus during survey period in November 2004 and NBCC had not made any temple or Mazar or Mosque in New Moti Bagh complex. Hence, as per plaint, it is clear from the reply under RTI that temple and Mazar are ancient i.e. existing prior to the year 1945.
5. It is further alleged in the plaint that on 07.03.2014, some of the officials came to the said Temple and Mazar and started extending threats to demolish the said Temple and Mazar. On being enquired by plaintiff, they informed that they were the officials of defendant No. 2 and they were directed to demolish the Temple as well as Mazar, for raising residential accommodation. Officials of defendant No. 2 also supplied a site plan on the basis of which they wanted to construct the residential accommodation, and in the said site plan the Temple and Mazar were also shown. Plaintiff had raised cries for help, on which many people gathered at the suit property and officials of defendant No. 2 left the place CS No. 57297/2016 Pt. Puran Prakash Dobriyal vs. Union of India & Anr. Page No. 4/20 with the threats that they would come again to demolish the Temple and Mazar. Plaintiff approached the local police and made a complaint to SHO PS Sarojini Nagar and DCP South New Delhi but no action was taken. As per the plaintiff, defendants do not have any right, title or interest in the suit property. Hence, present suit was filed by plaintiff with the apprehension that defendant no. 2 may demolish the suit property i.e. Temple and Mazar, shown in blue colour in the site plan. In the said suit, it is prayed that defendant No. 2 may be restrained from demolishing the suit property that is Prachin Shiv Durga Mandir area measuring 360 sq. yards and Mazar area measuring 156 sq. yards, which are situated at New Moti Bagh complex, as shown in blue colour in site plan.
6. Summons of the suit were issued to the defendants. Defendant No. 1 was proceeded exparte. Defendant No. 2 contested the suit by filing written statement. It is denied in the written statement that Prachin Shiv Durga Mandir and Mazar which are situated at New Moti Bagh complex are ancient temple or Mazar. Even the site plan attached with the plaint is denied. As per the written statement, the temple structure at New Moti Bagh complex has been recently constructed and the same is also unauthorized, as the land belongs to defendant No. 2. Further, as per the written statement, the plaintiff has encroached upon the government land CS No. 57297/2016 Pt. Puran Prakash Dobriyal vs. Union of India & Anr. Page No. 5/20 belonging to defendant No. 2 and has entered the said land/premises only in the year 2008. As per defendant No. 2, no cause of action has arisen in favour of plaintiff and suit is liable to be dismissed.
7. Replication to the aforesaid written statement was also filed by the plaintiff. In the replication, averments of the plaint were reiterated and contents of written statement were denied. In the replication, it is specifically denied that any unauthorized construction has taken place over the land in question on which the temple and Mazar are stated to be situated. It is also denied that the said land belongs to defendant No. 2.
8. On the basis of pleadings of the parties, following issues were framed for consideration
(i) Whether the suit property i.e. Prachin Shiv Durga Mandir and Mazar are ancient temple having ancient idols and established even prior to year 1945? OPP
(ii) Whether the plaintiff has locus standi to file a suit on behalf of the said Mandir being its priest? OPP
(iii) Whether the defendant No. 2 has threatened to demolish the suit property to the detriment of the plaintiff and other visitors of the temple and Mazar? OPP.
CS No. 57297/2016 Pt. Puran Prakash Dobriyal vs. Union of India & Anr. Page No. 6/20(iv) Whether the plaintiff is entitled to a decree of permanent injunction restraining the defendant No.2 from demolishing the suit property? OPP.
(v) Relief.
9. In order to prove his case, plaintiff examined himself as PW1 and tendered his evidence by way of affidavit which is Ex. P.1. He relied upon following documents:-
(i) Site plan - Ex. PW 1/A.
(ii) Five photographs - Ex. PW 1/B (colly).
(iii) Copy of invitation letter - Ex. PW 1/C.
(iv) Copy of Reply dated 18/05/2009 - Ex. PW 1/D.
(v) Copy of Letter dated 15/11/2008 - Ex. PW 1/E.
(vi) Copies of letters dated 24/06/2009, 21/03/2012, 17/01/2014 &05/02/2014 - Mark A to Mark-D (Colly.)
(vii) Copy of N.B.C.C. Letter dated 19/06/2012 consisting of two pages - Ex. PW1/F.
(viii) Map -Ex. PW1/G.
(ix) Copy of Election ID Card - Ex. PW1/H.
(x) Copy of electricity bill - Mark-E.
(xi) Copy of site plan - Mark F.
(xii) Complaint dated 07/03/2014 consisting of three pages-
Ex. PW 1/K.
10. In addition, plaintiff also examined Smt. Chandra Devi as PW2; Sh. Gopal Rastogi, Building Officer, L&DO as PW3; and Shri Vipin Kumar, Manager (HRM/RTI), NBCC as PW4. PW-3 proved on record copy of relevant pages from Punjab Gazette Part- II-A, I-B, July to December, 1911/Notification as Ex. PW3/A-
CS No. 57297/2016 Pt. Puran Prakash Dobriyal vs. Union of India & Anr. Page No. 7/201(Colly.). He also proved copy of RTI application bearing No. LADOF/R/2018/50084 dated 09.02.2018 along with Map submitted by applicant as Ex. PW3/A2 (Colly.). PW-4 proved RTI reply dated 19.06.2012 as Ex. PW4/A. PW1 to PW4 were duly cross examined by ld. counsel for defendant and discharged. Thereafter, plaintiff evidence was closed.
11. In order to prove its case, defendant No. 2 examined Shri Chandra Pratap Dwivedi as DW1, who tendered his evidence by way of Affidavit as Ex. DW1/A and relied upon various letters which are Ex. DW1/A to Ex. DW1/CC along with letters mark A and Mark 1. Said witness also relied upon letters relied upon by plaintiff as Ex. PW1/C to Ex. PW1/G. DW1 was cross examined by ld. Counsel for the plaintiffs and discharged. No other witness was examined and defence evidence was closed.
12. Detailed arguments were addressed from both the sides. Written submissions were also filed. Arguments heard. Record perused and considered. After hearing the arguments, perusing the record and giving due consideration, my issue wise findings are as under.
CS No. 57297/2016 Pt. Puran Prakash Dobriyal vs. Union of India & Anr. Page No. 8/20Findings Issue no. (i) - Whether the suit property i.e. Prachin Shiv Durga Mandir and Mazar are ancient temple having ancient idols and established even prior to year 1945? OPP
13. Onus to prove the said issue was on the plaintiff. In order to prove the same, plaintiff examined himself as PW1. In his evidence by way of affidavit, he has inter alia stated that the ancient idols of God Shiv and Goddess Durga, Lord Hanuman and Lord Shani along with hawan kund and idol of Sant Ravidas had been established in the said temple prior to the year 1945. Apart from the said averment, there is nothing in the evidence affidavit of PW1 to show as to who established the temple and when; and how did he know that the temple was established prior to 1945; and whether there is any documentation in any kind of record regarding existence of temple prior to 1945. Now let us see if the witness has brought any documentary proof to support his testimony to this effect. The plaintiff has filed the Site plan (Ex. PW 1/A); site plan (Mark F) and Complaint dated 07/03/2014 (Ex. PW 1/K) which do not in any way show that the temple was established prior to the year 1945. The five photographs (Ex. PW 1/B) filed by the witness also do not show that the temple was established prior to the year 1945. Four of these photographs are evidently clicked recently and one of the photographs also shows a banner of celebration CS No. 57297/2016 Pt. Puran Prakash Dobriyal vs. Union of India & Anr. Page No. 9/20 scheduled for 10.03.2013. Further, remaining photographs which are a black and white print of original photographs are purported to be photographs of inauguration ceremony, which as per the plaint was held in 2008. Thus, there is no photograph depicting the existence of temple in or around the year 1945. Copy of invitation letter (Ex. PW 1/C) written to NBCC and AAI which was issued at the time of renovation of the temple in the year 2008 does not show that the temple was established prior to the year 1945. Perusal of Ex. PW 1/D, Ex. PW 1/E, Mark A to Mark-D (Colly.) and Ex. PW1/F, [which are various letters exchanged between the plaintiff, L&DO, Ministry of state for civil aviation, National Commission for Scheduled Castes and Sh. K. C. Singh 'Baba'], also shows that in none of these letters there is any mention of the temple being established prior to the year 1945. Rather, in the said letters, the plaintiff and his supporters are requesting for not removing the temple on the ground of religious sentiments and not because the temple is ancient as existing since prior to 1945. Map (Ex. PW1/G) is also stated to have been prepared in the year 2004. Copy of Election ID Card of plaintiff (Ex. PW1/H) was issued in the year 1996. Copy of electricity bill (Mark-E) pertains to the year 2013. Thus, the earliest document filed by the plaintiff to show the existence of temple pertains to the year 1996 which is Copy of Election ID Card of plaintiff (Ex. PW1/H). There is no record of CS No. 57297/2016 Pt. Puran Prakash Dobriyal vs. Union of India & Anr. Page No. 10/20 existence of temple prior to that. Interestingly, as regards the Mazar, the reference to the same is made for the first time in the year 2014 in the document Mark C.
14. Further, PW1 has stated in his evidence that he has been looking after the temple and Mazar for the last about 20 years. The affidavit has been executed in the year 2015. It implies that he has been looking after the said temple and Mazar only since 1995. In his cross-examination, however, he has stated that he had started living in the temple since 1990. However, he has himself admitted that he has not filed any documentary proof regarding his residence at the temple since 1990. He has also stated that the only document he has filed showing his address is Ex. PW1/H, which is dated 4.1.1996. He has also stated that he is not aware that in the year 1990 there was any Mazar near the temple site. Thus, for one, statement of PW1 that he started residing in the temple in the year 1990 is beyond the plaint and secondly, the same is not supported by any document. It is also important to note that PW1 admitted in his cross examination that he took electricity connection in the year 2012 and he was staying at the temple since 1990 to 2012 without electricity, which is also quite unbelievable. Even as regards water connection, PW1 stated that though there is a water connection at the temple but he is not aware since when the water connection at CS No. 57297/2016 Pt. Puran Prakash Dobriyal vs. Union of India & Anr. Page No. 11/20 the temple is there. He also admitted that he has not filed any document to show water connection at the temple.
15. Further, as regards his claim that temple is existing since prior to 1945, PW1 has stated in his cross-examination that "There is no scientific examination as to determine the age of idols or the walls of the temple. I claim that the temple is prior to 1945 on the basis of a Shilapat which states "Samvat 2001 Sakey 1866 Falgun Badi Chaturdashi Ravivar Mahashivrathri sthapna. I cannot say whether the same engravings can be done as on the year 1990 or even today." Now, no such shilapat has either been mentioned by the plaintiff in his plaint or in his evidence affidavit. In fact, even after mentioning the same for the first time in his cross examination, the plaintiff has not cared to prove it by bringing evidence in this regard like photographs to show existence of the shilapat or expert evidence to show that it pertains to the year 1945 as per English calendar.
16. As regards PW2 Smt. Chandra Devi, she has deposed in her evidence by way of affidavit that the Prachin Shiv Durga Mandir and Mazar which are situated at New Moti Bagh complex are ancient temple and Mazar, as the same were established prior to the year 1945. She has also stated that the plaintiff is looking after CS No. 57297/2016 Pt. Puran Prakash Dobriyal vs. Union of India & Anr. Page No. 12/20 the said temple and Mazar for the last twenty three years and she has seen the temple and Mazar since her first day of residence in New Moti Bagh Complex. In her cross examination, she has stated that she has been residing at the same address since last 30 years. As the evidence was recorded in the year, 2018, it can be concluded that PW2 has been residing at the given address since 1988. Thus, her personal knowledge regarding the existence of temple and Mazar can be related back to the year 1988 and not prior to that. Further, in her cross examination she has stated that she had heard that the temple was constructed in the year 1945 by the old people in the locality. Thus, this part of her testimony is only hearsay and cannot be considered.
17. In view of the aforesaid material on record, it can be concluded that at the best the material on record shows that the temple and Mazar which are the suit property have existed since the year 1988. However, the plaintiff has not been able to prove that the said temple and Mazar have existed prior to since 1945. Plaintiff could have examined a witness from neighbourhood who had seen the temple and Mazar around 1945-1955 but he has failed to do so. Plaintiff has also failed to bring any documentary record of the existence of temple or Mazar since prior to 1945. Hence, in my considered opinion, plaintiff has failed to discharge the onus to CS No. 57297/2016 Pt. Puran Prakash Dobriyal vs. Union of India & Anr. Page No. 13/20 prove issue no. (i) and the same is decided in favour of defendants and against the plaintiff.
Issue no. (ii) - Whether the plaintiff has locus standi to file a suit on behalf of the said Mandir being its priest? OPP
18. Onus to prove the same was also on the plaintiff. The present suit has been filed by the plaintiff in his individual capacity, to seek injunction against the defendant no.2 to restrain it from demolishing the suit property viz. Temple and mazar. It is settled law that in respect of a temple, the status of a pujari is only that of a manager and he does not have any proprietary rights in the temple property. Plaintiff is not the owner of the land or of the temple. Hence, plaintiff has no locus to file the present suit and this issue is also decided in favour of the defendants and against the plaintiff.
Issue no. (iii) - Whether the defendant No. 2 has threatened to demolish the suit property to the detriment of the plaintiff and other visitors of the temple and Mazar? OPP.
19. Onus to prove the said issue was also on the plaintiff. As per the plaintiff/PW1, defendant no. 2 is trying to demolish the said temple and Mazar since the year 2012 and plaintiff had written letters to various authorities, who in turn wrote to defendant no. 2 requesting it not to demolish the same. The plaintiff has relied upon several documents in support of his case CS No. 57297/2016 Pt. Puran Prakash Dobriyal vs. Union of India & Anr. Page No. 14/20 that defendant no. 2 has threatened to demolish the suit property to the detriment of plaintiff and other visitors, which are as follows:
i) Document mark B is a letter dated 21.3.2012 which is written on behalf of National Commission for Scheduled Castes. In the said letter, it is stated that NBCC and Airport Authority of India are attempting to remove the Prachin Shiv Durga Mandir and a request is made to preserve the temple on account of religious sentiments.
ii) Document mark C is a letter dated 7.1.2014 which is also written on behalf of National Commission for Scheduled Caste. In the said letter, it is stated that Airport Authority of India is attempting to remove the temple and Mazar. It is also stated in this letter that on 9.4.2014, some people from Airport Authority went to the temple and mentioned that houses would be constructed after removing the temple. It was requested in the said letter that keeping in mind the religious sentiments, directions should be issued to preserve Prachin Shiv Durga Mandir.
iii) Document mark D is a letter dated 5.2.2014 and it is written by one Shri KC Singh "Baba". In the said letter also, request is made to issue directions to preserve Prachin Shiv Durga Mandir as it is, so that people in the vicinity can perform worship without any obstruction and their religious sentiments are respected.CS No. 57297/2016 Pt. Puran Prakash Dobriyal vs. Union of India & Anr. Page No. 15/20
20. From the perusal of above documents it is noted that in none of the documents Mark B to Mark D, it is mentioned that defendant no.2 had threatened the plaintiff to demolish the suit property. 'To attempt to demolish' and 'to threaten to demolish' are two different things. Merely because there is attempt on part of AAI/defendant no. 2 to demolish the temple, it does not mean that they are threatening to demolish the temple. From the letters Mark B to Mark D, it can not be inferred that defendant no. 2 was extending any threats to the plaintiff to remove the temple.
21. It is only in the complaint to SHO Ex. PW1/K that it is mentioned that on 7.3.2014, officials of airport authority of India had extended threats to the plaintiff to demolish the suit property. In this regard only, it is stated in the plaint that plaintiff had cried for help and then many persons having faith in the said temple and Mazar had collected at the suit property. However, not a single eye witness of the incident dated 7.3.2014 has been examined by the plaintiff to prove the same. Thus, apart from a self serving document in the form of police complaint, there is nothing on record to show that at any time threats were extended by the defendant no. 2 to demolish the suit property. The said issue is also decided in favour of the defendants and against the plaintiff.
CS No. 57297/2016 Pt. Puran Prakash Dobriyal vs. Union of India & Anr. Page No. 16/20Issue no. (iv) - Whether the plaintiff is entitled to a decree of permanent injunction restraining the defendant No.2 from demolishing the suit property? OPP.
22. As noted above, the plaintiff has not been able to prove that the Temple and Mazar in question are ancient, or that the plaintiff has any locus to file the present suit, or that any threats have been extended by the defendant no.2 to demolish the temple or mazar.
23. Interestingly, plaintiff examined PW3- Sh. Gopal Rastogi from L & DO to prove that the land in question does not belong to Airport Authority of India/defendant no.2. In this regard, it must be noted that in the cross examination of the said witness, he has stated that "The land has been handed over to NBCC for redevelopment and ownership of the land remains with the Government of India. The temple is an encroachment on Government land. It was never allotted to the plaintiff or any of his Predecessor in interest.". Thus, the temple itself is shown to be an encroachment by PW3. It must be noted that injunction is an equitable and discretionary relief and one who seeks equity must do equity. As it is noted that the temple in question is itself an encroachment on the government land, it is clear that plaintiff has CS No. 57297/2016 Pt. Puran Prakash Dobriyal vs. Union of India & Anr. Page No. 17/20 not himself come to the court with clean hands and he is seeking protection in respect of the temple which is an encroachment.
24. Ld. Counsel for plaintiff relied upon the judgment of Hon'ble Supreme Court in the case of A. Subramanian & Anr. vs. R. Pannerselvam reported in (2021) 3 SCC 675 , to argue that even a trespasser who is in established possession of property can obtain injunction without claiming declaration. In this regard, it must be noted that the said judgment was passed in respect of a private property and where prior suit of defendant for declaration and possession had been dismissed. In such circumstances, it was held that plaintiff was not required to seek declaration and defendant has no right to resist the suit of plaintiff. However, in the present case, the temple is shown to be an encroachment on Government land. It may further be noted that the present suit is not simply to protect possession of plaintiff in the suit property without due process of law. Present suit is also not to restrain the Defendant no. 2 from demolishing the suit property without due process of law. During the course of arguments, it was argued by the ld counsel for plaintiff that the purpose of the plaintiff for filing the present suit would be fulfilled even if the defendant no. 2 was restrained from demolishing the suit property without due process of law. However, it must be noted that the prayer in the present suit is not CS No. 57297/2016 Pt. Puran Prakash Dobriyal vs. Union of India & Anr. Page No. 18/20 to that effect and the plaintiff did not care to modify the prayer at any stage of the suit. No relief can be granted which is not prayed for by the plaintiff. It was also argued on behalf of plaintiff that prayer of injunction to not demolish the temple and mazar without due process of law is inherent in the prayer made in the suit. However, I do not find any merit in this submission as the prayer cannot be inferred without having been specifically made.
25. In view of the aforesaid, Plaintiff is not found entitled to the injunction as prayed for. However, needless to say, dismissal of present suit does not mean that the suit property can be demolished without due process of law or that the plaintiff will be remediless in case the suit property is attempted to be demolished without due process of law. Whether it is defendant no.2 or any other authority which may seek to demolish the suit property in future, it goes without saying that the due process of law will have to be followed. If not followed, plaintiff may take recourse to law, as available, it will just not be in the form of execution or breach in the present case, as no relief is being granted to the plaintiff in the present case.
Issue no. (v) - Relief.
CS No. 57297/2016 Pt. Puran Prakash Dobriyal vs. Union of India & Anr. Page No. 19/2026. In view of the aforesaid issue wise findings, it is concluded that plaintiff is not entitled to any relief in the present suit. Suit is liable to be dismissed. Hence, dismissed.
No order as to costs. Decree sheet be drawn accordingly. File be consigned to record room after due compliance.
Announced in open SWATI GUPTA-I
Court on 29.08.2024. JSCC-ASCJ-GJ, NDD
Patiala House Courts,
New Delhi.
CS No. 57297/2016
Pt. Puran Prakash Dobriyal vs. Union of India & Anr. Page No. 20/20