Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(Del) 743

IN THE HIGH COURT OF DELHI AT NEW DELHI
PRATHIBA M. SINGH, J.
Neeta Bhardwaj and Others – Appellants
Versus
Kamlesh Sharma – Respondent
F.A.O. No. 36 of 2021, C.M. Application Nos. 2914, 10442, 10444, 14178, 20904, 20945, 20949, 23819, 25868, 25869, 25870, 25884, 25885, 26495, 29013, 29014, 29121, 38063, 38289, 39643, 40269, 43796, 43797, 43944, 43945, 43946 of 2021, C.S. (OS) Nos. 641, 642 of 2005, 511, 512, 517, 518, 519, 520, 521, 523, 524, 525, 526, 527, 528, 529, 530, 531, 532, 533, 534, 535, 538, 539, 540, 541, 542, 543, 544, 545, 546, 547, 548, 550, 551, 552, 553, 554, 555, 556, 557, 559, 579, 588, 648 of 2021, Review Petition Nos. 103, 177 of 2021, C.M. (M) No. 323, 575 of 2021, Cont. Cas. (C) No. 614 of 2021, R.F.A. Nos. 411, 412, 413, 414 of 2021, I.A. Nos. 19847 of 2012, 16501, 16502, 19445, 19512 of 2014, 2234, 24296, 24297 of 2015, 4478 of 2019, 8339 of 2020
Decided On : 07-12-2021

Advocates:
Advocate Appeared:
Mr. Rakesh Tikoo, Mr. Lokesh Bhardwaj, Mr. R.K. Bhardwaj, Mr. Dheeraj Bhardwaj, Mr. Neeraj Bhardwaj, Mr. Rohit Kishan Naagpal, Mr. Dipanshu Gaba, Ms. Garima Anand, Mr. Gaurav Bidhuri, Mr. Humayun Khan, Mr. Pradeep Kumar Gulia, Mr. Rajesh Kumar Gupta, Mr. Kamal Kumar, Mr. Krishan Gopal Chokkar, Mr. Jitender Verma, Mr. Mayank Yadav, Mr. Thakur Sumit, Mr. Vishal Bhardwaj, Mr. Kamal Kant Bhardwaj, Mr. Vishal Maan, Mr. R.S. Verma, Mr. Vipin Bharadwaj, Mr. Kush Bhardwaj, Mr. Luv Bhardwaj, Mr. Sanjay Bhardwaj, Mr. R.K. Gupta, Mr. K.G. Chhokar, Mr. Avinash Chaurasia, Mr. Yoginder Singh, Mr. Sarvesh Bhardwaj, Ms. Rashmi B. Singh, Mr. Prabhash Chandra, Ms. Sangeeta Bharti, Mr. Amit Gupta, Mr. Amit Rawat, Mr. D.K. Singhal, Mr. Manish Choudhary, Mr. K.K. Tyagi, Mr. Sunil Fernandes, Mr. Shubham Sharma, Mr. Harsh Khirwal, Ms. Samapila Biswal, Ms. Shambhavi Kala, Ms. Smita Mann, Ms. Vivek Kumar Singh, Mr. Yashvir Kumar, Mr. Arun Birbal, Mr. Sanjay Singh, Mr. S. Sasib Hussain, Mr. Sanjay Lao, Mr. Pardeep kumar Gulia, Mr. Thakur Sumit, Mr. Sundeep Sehgal, Mr. Mahenderr Kumar Pandey, Mr. Balbir Singh, Mr. Manu Dev, Mr. Deepak Dewan, Mr. Nitin Jain, Mr. Shashi Bhushan, Mr. Deepak Diwan, Mr. Anuroop P.S.

Point of Law: There is enormous in-fighting amongst the stakeholders which is reflected in various proceedings that were pending in different courts.

Headnote:
Constitution of India, 1950 - Articles 226 and 227 - Civil Procedure Code, 1908 - Section 24 - General power of transfer and withdrawal - Interim report of ld. Administrator have impeded, and obstructed implementation of directions passed by this Court - Accordingly, notice was issued to these two persons and they were directed to be personally present in Court - Whether said shopkeepers are willing to vacate said premises - Whether in shops or residences, have to be removed from Kalkaji Mandir and requisite cooperation shall be extended by officials concerned, to ld. Administrator for said purpose.
Finding of the Court:
Court has perused Review application and has also perused judgments which have been placed by ld. Counsel for the Applicant - As contained in order and previous orders passed therein, Shree Kalkaji Mandir is a Mandir of great historical importance to Delhi, and has been a subject matter of at least 60 to 70 proceedings which were pending before various district courts and several courts in Delhi - As per order, all these cases have now been transferred to this Court in exercise of powers under Section 24 CPC - Court, exercising its powers under Section 24 of CPC, had vide order, directed transfer all matters pending before lower courts, in respect of the Kalkaji Mandir, before this court, to hear all parties who are stakeholders in Kalkaji Mandir, consolidate the issues and resolve them in a quick and efficient manner - Court holds that ground for review that this court has exceeded its jurisdiction is completely untenable - In any case, is not only in context of FAO, but has also been passed exercising jurisdiction under Articles 226 and 227 of Constitution of India.
Result: Review application dismissed.

JUDGMENT :

PRATHIBA M. SINGH, J.

1. This hearing has been done in physical Court. Hybrid mode is permitted in cases where permission is being sought from the Court.

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 last order dated 15th November 2021, various directions were issued to the Delhi Police, SDMC, the ld. Administrator appointed by this Court, DUSIB, Delhi Jal Board as well as some of the baridaars.

Misconduct on the part of baridaars

4. As captured in paragraph 19 and 20 of the last order dated 15th November 2021, Mr. Nakul Bhardwaj and Mr. Lokesh Bhardwaj are two individuals, who according to the interim report of the ld. Administrator dated 26th October 2020, have impeded, and obstructed the implementation of the directions passed by this Court. Accordingly, notice was issued to these two persons, and they were directed to be personally present in Court.

5. Today, Mr. Nakul Bhardwaj and Mr. Lokesh Bhardwaj are present in Court. Mr. Rakesh Tikkoo, ld. Senior Counsel, appearing on behalf of Mr. Lokesh Bhardwaj, submits that Mr. Lokesh Bhardwaj is an advocate whose family is also part of the baridaars of the Kalkaji Mandir. He submits that he does not have a copy of the ld. Administrator’s report.

6. Vide the last order, the ld. Administrator’s report was directed to be made available to all parties appearing in these matters. Be that as it may, both Mr. Lokesh Bhardwaj and Mr. Nakul Bhardwaj may obtain a copy of the ld. Administrator’s report from the Registry, and shall specifically respond to the contents of the said report in paragraphs 31-37, which relate to them. Let an affidavit responding to the said contents be filed within two weeks.

Unauthorized encroachment by the shopkeepers and removal of encroachments and unauthorized construction

7. Vide the last order, this Court had clearly held that none of the shopkeepers, who are in illegal occupation of Mandir premises, can remain in possession. The shopkeepers or their families also cannot reside in the Mandir complex. The same is impermissible and is nothing but unauthorized encroachment and trespass into the Mandir's premises. Accordingly, the following direction was passed:

“14. Accordingly, the ld. Administrator, with the cooperation of the Delhi Police and the SDMC, is permitted to take action for removal of all the unauthorized encroachers including their residences within the Kalkaji Mandir premises. For the said purpose, if any of the shopkeepers and illegal residents in the Mandir premises are entitled to alternate accommodation, the DUSIB may consider their request and provide alternate premises on humanitarian grounds. However, it is made clear that the pendency of any application for alternate accommodation before DUSIB shall not come in the way of the removal of encroachers and trespassers from the Mandir premises.”

8. Today, Ms. Samapika Biswal, ld. Counsel appearing on behalf of the ld. Administrator submits that the direction is being complied with and as a result, encroachments by 31 shopkeepers have been already removed from the Mandir premises.

9. In respect of this issue, impleadment applications bearing CM Application No. 43944/2021 has been filed by 68 shopkeepers who claim to be the occupants of the shops at the Kalkaji Mandir premises. Mr. Nitin Jain, ld. Counsel has tendered appearance on their behalf. Apart from this, Mr. Deepak Diwan, ld. Counsel has also tendered appearance on behalf of 33 shopkeepers and Mr. Shashi Bhushan, ld. Counsel, has appeared for 4 shopkeepers, who claim to have their shops within the Kalkaji Mandir premises. Several of these shopkeepers are also stated to be residing within the Mandir premises including in the Dharamshalas etc.

10. It is the submission of Mr. Shashi Bhushan, ld. Counsel, that his clients who are four shopkeepers,

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Judicial Analysis

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2021 Supreme(Del) 743

Point of Law: There is enormous in-fighting amongst the stakeholders which is reflected in various proceedings that were pending in different courts.

Cases Referred (3)

Judicial Analysis