CM No.10221/2012 (under Section 151 CPC by Delhi Police) in WP (C) No.4323/2012

1. The Delhi Police seeks modification of the order dated 30.7.2012 whereby the direction made vide para 34 (v) requires police assistance to be rendered to MCD [now North Delhi Municipal Corporation (for short „NDMC)] for implementing the statutory mandate without fail. A further direction is sought that the unauthorized construction/ obstruction/nuisance at the site of Subhash Park should be directed to be removed by Shri Shoaib Iqbal.

2. In view of our order dated 30.7.2012, the Deputy Commissioner, NDMC vide letter dated 31.7.2012 sought police force so that necessary arrangement could be made. On consideration of the letter, the Delhi Police formed its opinion that since it was the holy month of Ramzan, which will culminate on 20-21.8.2012 and Independence Day celebrations are approaching as also the booking of Ramlila Ground by Baba Ramdev and his team, it may become difficult for the Delhi Police to spare personnel/force. A postponement of action, thus, was sought.

3. It has also been alleged that in view of Section 20A (2) of the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (hereinafter referred to as the „said Act) no person, other than an archaeological officer, shall carry out any construction in any prohibited area. Shri Shoaib Iqbal, MLA (not of the area concerned) had spearheaded the construction and, thus, a direction should be made to him under Section 133 of the Code of Criminal Procedure, 1973 for removal of obstruction/nuisance.

4. On examination of the averments in the application, to a large extent the application has become infructuous. This is so as the reasons stated for delay in action no more exist as those events are over. However, as far as issuance of directions to Shri Shoaib Iqbal is concerned, while during the initial hearings on this application and his applications a portrayal was made that he was in the forefront of the construction activity, an ambivalent stand was taken subsequently as it was stated that Mr. Shoaib Iqbal should not be asked to make any admission as it would affect any criminal case which may be pending against him.

5. In our view, it is the bounden duty of the Delhi Police to ensure that peace is maintained and yet law of the land is not breached holding out threats of possible repercussions.

6. Mr. Aman Lekhi, learned senior counsel has rightly drawn our attention to certain observations made in Mohd. Aslam @ Bhure, Acchan Rizvi Vs. Union of India, State of Uttar Pradesh & Ors. (1994) 6 SCC 442 which in turn had relied upon the words of Justice Frankfurter. We consider it appropriate to extract the relevant passages as under:

“12. But it is necessary to say that in a Government of laws and not of men the Executive Branch of Government bears a grave responsibility for upholding and obeying judicial orders. It is perhaps worthwhile recalling what the Supreme Court of United States observed in William G. Cooper, Member of the Board of Directors of the Little Rock v. John Aaron 358 US.1 where, in his concurring opinion Justice Frankfurter said: The use of force to further obedience to law is in any event a last resort and one not congenial to the spirit of our Nation. Violent resistance to law cannot be made a legal reason for its suspension without loosening the fabric of our society. What could this mean but to acknowledge that disorder under the aegis of a State has moral superiority over the law of the Constitution?

The historic phrase 'a government of laws and not of men' epitomizes the distinguishing character of our political society. When John Adams put that phrase into the Massachusetts Declaration of Rights he was not indulging in a rhetorical flourish. He was expressing the aim of those who, with him, framed the Declaration of Independence and founded the Republic. Compliance with decision of this Curt, as the constitutional organ of the supreme law o