S. RAVINDRA BHAT, J.

C.M. APPL.2550/2005 & W.P.(C) 12409/2004, C.M. APPL.2551/2005, 11638/2006, 10522/2009 & 7476/2010

1. This judgment will dispose of C.M. Appl.2550/2005 as well as the writ petition. The application seeks recall of the judgment of this Court dated 03.11.2004 disposing of the writ petition.

2. In the writ petition, said to be in public interest, the claim made was for a direction to the first respondent – Delhi Development Authority (DDA) to remove alleged encroachment by demolishing structures from the northern portion of the graveyard (hereafter referred to variously as “Qabristan/graveyard”) and also to restrain the fourth respondent (hereafter referred to as “the Arya Samaj Shamshan”) from using the northern portion of the said graveyard. Further direction was sought against the sixth respondent, i.e. Delhi Police to enjoin them from using Khasra No.529 for parking purposes. The petitioner had alleged that in March 2004, the DDA, acting in connivance with other respondents started construction by encroaching upon the northern portion of the qabristan which resulted in the filing of an earlier proceeding, being W.P.(C) 3811-13/2004 [Mujeeb v. DDA and Ors]. That writ petition was disposed of on 17.03.2004, directing the respondents to examine the pleading in the writ petition as a representation and take an appropriate decision in accordance with law.

3. The petitioner also alleged that the DDA did not heed to the Court’s order which led to the filing of further representation. With these allegations, the reliefs claimed were sought. The petitioner had relied principally upon a suit filed by the Delhi Wakf Board (DWB) against the then Municipal Corporation of Delhi (MCD), being Suit no.60/1971 titled Delhi Wakf Board v. MCD before the Sub-Judge which was decreed on 12.09.1975. The said judgment returned a finding that based upon the documents presented by the plaintiff, i.e. the DWB, that the land in question i.e. 7 bighas formed part of Khasra No.529, a decree for permanent injunction was, therefore, granted.

4. The MCD’s appeal, i.e. RCA 77/1977 to the Additional District was dismissed on 05.01.1978. The petitioner also relied upon certain other documents, including copies of the representations. The petition was listed on 28.07.2004, 10.08.2004 and 25.08.2004. On all these dates of hearing, notice to show cause was not issued to the respondents. On 03.11.2004, the Court noticed the judgment of the Sub-Judge as well as the outcome of the appeal filed by the MCD, and allowed the writ petition in the following terms:

“1. This petition is confined to the 7 bighas of land which forms part of khasra no.529. There is a decree made by the Court in Suit No.60 of 1971 by Sub-Judge, Delhi against which an appeal was preferred being RCA No.77 of 1997, which was dismissed by the District Judge. Thus it is very clear that so far as 7 bighas forming part of Khasra No.529 is concerned, that must be maintained as a “Qabrisatan”. For the purpose of clarity, we would like to refer to para 17 of the Court’s order, which reads as under:-

“In the result, the defendant Corporation is permanently restrained from filling up of the pits, leveling of the ground and from erecting the boundary wall and from causing interference in any way, without the consent and convenience of the plaintiff upon the land of qabristan known as “Qabristan Panj piaran” Link Road, Delhi, which measures 7 bighas in area and forms part of khasra No.529 and on whose one side there runs a nala and on the other side there runs a Link Road and on the 3rd side the same is bounded by the line D.C. as shown in the site plan Ex.PW.3/1 and which has been coloured in red colour. The position of the line/AB in the site plan.

2. Thus, these 7 bighas indicated clearly in the order which require to be protected. On behalf of the respondent Delhi Development Authority, it is submitted that “Qabristan” is in khasra No.529/1. However, we note that the court has referre