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2017 Supreme(Del) 1890
IN THE HIGH COURT OF DELHI AT NEW DELHI
GITA MITTAL, C. HARI SHANKAR, JJ.
Savyasachi K. Sahai - Petitioner
Versus
Union Of India & Ors - Respondent
Review Petition No.242 OF 217 And CM No.21184 OF 2017 In WP(C)No.7955 OF 2015
Decided On : 05-06-2017
Advocate Appeared:
For The Petitioner:Petitioner In Person
For The Respondent: Mr. U. Hazarika, Sr. Adv. With Mr. Syed Hasan Isfahani, Mr. Jayant Mohan, Mr. Aamir Khan, Advs., Mr. Vikram Jetley, CGSC, Mr. Rajeev Kr. Yadav, Adv., Mr. Wajeeh Shafiq, SC For Delhi Waqf Board With Mohd. Qaseem And Mr. Dhairaj Kapoor, Advs. Mr. Jayant Tripathi And Mr. Dinesh Dahiya, Advs., ASI Mr. Sanjeev Sabharwal, SC, Mr. Satyakam, ASC For GNCTD With Mr. Pankaj Sharma, Adv. Insp. Jarnail Singh, SHO PS Nizamuddin Ms. Diksha Lal For Mr. Ajjay Aroraa, Adv. For SDMC Mr. Mohit Chugh For Mr. Sanjeev Ralli, Adv. For DPCC
Headnote:
Delhi Development Authority Act, 1957 - Section 12 - Grabbing of land - Fraud - Review, dismissed - Review petitioners are indulging in efforts to grab the land of the park - Fraud is committed by renting out portions and taking rent and other charges and carrying out commercial usage on the land - Fraudulent activities would be penal offences - Authorities or local police have failed to comply with the court orders - Police has also failed to conduct any investigation into the gross illegalities at the spot or to ensure compliance with the law - Held, review petitioners are attempting to and had caused encroachments over the park in which they have no right, title or interest - It is completely impermissible - Review petitioners are interlopers and have no right on the subject matter - Review petition is dismissed.
Delhi Development Authority Act, 1957 - Section 12 - Land - Encroachment - Right to residents - No court can permit the lives of the lawful residents in the surrounding areas, as well as of the visitors to these monuments which are of international repute, to be imperilled - Right to life of all residents of Delhi is not imperilled if activity which would lead to increase of insanitary conditions as well as breeding of mosquitoes carrying dangerous diseases is continued or permitted.
Wakf Act, 1954 - Section 3 - Mutawalli - No Previous appointment - Right to fresh appointment , denied - No pleading with regard to any customary appointment of any ancestor or their predecessor-in-interest as a mutawalli of the wakf - No deed or instrument - No ancestor or predecessor in interest of the review petitioners was a mutawali within the meaning of expression in Wakf Act - Doing sewa or service or charity does not create any right, title or interest in a place of worship or a monument or a permanent structure - Review petitioners cannot claim such entitlement or appointment or rights.
Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 - Section 93 - Waqf Act, 1954 - Section 14 - Delhi Development Authority Act, 1957 - Section 12 (1) - Unauthorized - Illegal structures - Removal of encroachments - Review Petition - Triangular piece of land bounded by major roads on all three sides - Government of India acquiring several Waqf properties for the extension of City - Several such properties being of religious character - Both the Delhi Development Authority as well as Delhi Wakf Board are staunchly contesting the claim of the applicant - They are rank encroachers who are trying to crystallize a legal claim on the property - Review petitioners are not only indulging in efforts to grab the land of the park but have also committed fraud by renting out portions and taking rent and other charges and carrying out commercial usage on the land - Fraudulent activities would be penal offences under the provisions of the Indian Penal Code and municipal law - authorities or local police have failed to comply with the court orders - Police has also failed to conduct any investigation into the gross illegalities at the spot or to ensure compliance with the law - Held, review petitioners are interlopers and have no right on the subject matter of the writ petition.
GITA MITTAL, J.
1. This Review Petition No.242/2017 has been filed by four applicants, namely, Mohd. Shakeel, Mohd. Allauddin and Mohd. Mehmood (claiming to be the three sons of Late Mohd. Yusuf and Late Mohammed Yunus) and Mohd. Nasir (son of Mohd. Hakmuddin) seeking review of our order dated 16th May, 2017. The review petitioners have, in the review petition, claimed that the same relates to a land which is the subject matter of the writ petition. For the purpose of expediency, we reproduce hereunder our order dated 16th May, 2017 :
“1. Notice.
2. Mr. Rajeev Kr. Yadav, learned counsel for the petitioner; Mr. Sanjeev Sabharwal, standing counsel for the DDA; Mr. Vikram Jetly, Central Government Standing Counsel and Mr. Satyakam, Additional Standing Counsel for the GNCTD accept notice.
3. It is submitted by Mr. Sanjeev Sabharwal, learned standing counsel for the DDA that out of the total Tikona Park which as per the petitioner is 12.08 acres, a very small portion of the property is old construction and that the same is not the subject matter of demolition. There is unauthorised construction which has been raised after 2015.
4. Neither any site plan is placed with the application nor here is any documents to establish title.
5. Mr. Rajeev Kumar, learned counsel for the petitioner has drawn our attention to an order dated 12th January, 2011 passed in W.P.(C) No. 3927/2010 wherein this court has noted earlier decision passed in W.P.(C) No. 1512/1984 and directions were issued to the Union of India for taking appropriate steps for removal of unauthorised encroachment and unauthorised construction as they had taken place in violation of the orders passed in 1984.
It is pointed out that by the order dated 12th January, 2011, the court had also observed that :
“.... Needless to say, when we have said unauthroised 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 unauthorised 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.”
(Emphasis by us)
6. The petitioner as well as ld. counsel for the other parties contend that the properties of these applicants have come up on this spot after the passing of the above orders.
7. We find that there is nothing to support that the construction which is reflected in the photographs by the applicants is old. On the contrary, the photographs show brand new constructions which are freshly painted. None of the photographs show any old construction.
8. We may mention that even the photographs placed with the application prima facie do not show the correct or the complete position. They certainly do not support the submissions made in the applications.
9. In para 3 of CM No.18595/2017, a bald assertion of “since their ancestors” and “in a portion of the park” is made without any specifications. The applications mention not a single date of construction or occupancy. No details of occupation are mentioned. Not a whit of right or title or interest of the applicant in the subject property is mentioned. There is no document to support even the occupancy.
10. The respondents shall strictly ensure that no old construction is demolished.
11. Let a status report in this regard be placed before us tomorrow i.e. on 17th May, 2017.
12. List on 17th May, 2017.
Dasti under the signatures of Court Master.”
2. Grave urgency was expressed by the review petitioners. It is submitted by Mr. U. Hazarika, ld. Senior Counsel for the review petitioners that all the relevant records have been placed along with the review petition. Additionally, along with the review petition, documents running into 206 pages were also
