2023 Supreme(Online)(DEL) 2470

$~1 * IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 6th March, 2023 + W.P.(C) 4063/2020 ZAHIR AHMED ..... Petitioner Through: Mr. Khan Zulfiquar Khan and Mr.

Deepak Kumar Mishra, Advocates.

(M: 9560376098)

versus GOVERNMENT OF NCT OF DELHI THROUGH DISTRICT MAGISTRATE & ORS. ..... Respondents Through: Mr. Wajeeh Shafiq, Standing Counsel for Delhi Waqf Board. (M:

9953756236).

Ms. Lubna Naaz, Advocate for R-3.

Mr. Raghuvendra Upadhyay, Assistant Standing Counsel for R-4.

CORAM:

JUSTICE PRATHIBA M. SINGH Prathiba M. Singh, J. (Oral)

1. This hearing has been done through hybrid mode.

2. The present petition relates to a prime property located next to the Masjid Zabta Ganj, Man Singh Road, India Gate, New Delhi. The Petitioner, Zahir Ahmed, has filed the present petition seeking de-sealing of the said property, which admittedly consists of one room, kitchen, bathroom and some space adjacent to the mosque (hereinafter ‘said property’). Further, he seeks a restraint order against alleged harassment being caused to him. Petitioner further seeks permission to make reconstruction of the said property.

3. The prayers in this writ petition are as under:- “а. Issue a writ in the nature of mandamus thereby direct the respondent no. 1 & 2 to de-seal the said premise of the petitioner and hand over peaceful possession to the petitioner;

b. Issue appropriate writ/direction to the respondent no. 2 to refrain from unnecessary harass the petitioner in respect of possession of the said property of the petitioner;

C. Issue appropriate direction to respondent no. 2 to 3 to reconstruct the wall demolished by them and also rebuilt the premise in the same state as it was prior to 05.03.2020;

d. Issue appropriate direction to the respondent no. 4 to take appropriate actions against the person who have illegally encroached its property in the area near India Gate;

e. Issue appropriate writ/direction to the respondent no. 1 & 5 to conduct an enquiry and take legal action against the erring officials;

f. Issue appropriate writ/direction to the respondent no. 5 to take legal action against officials of respondent no. 2, respondent no. 3 &

his relatives and goons;

g. Pass any other/further writ/order which this Hon'ble court deem fit and proper in the facts and circumstances of the case.”

4. Admittedly, the said property is in the vicinity of India Gate in New Delhi. The case of the Petitioner in the writ petition is that he and his family have been living in the said property for several decades and the property was separated from the mosque by a wall constructed between the mosque and the said property.

5. The Petitioner relies on a civil suit was instituted by the Waqf Board being Civil Suit No. 597/1995 titled ‘Delhi Wakf Board v. Sh. Zaheer Ahmed & Sh. Rashid Ahmed’ seeking possession of the said property. The said suit was dismissed vide order dated 14th October 1998, as the parties had not led evidence in the matter.

6. The grievance of the Petitioner is that in 2005, the Respondent No. 3- Mohd. Asad i.e. the current Imam of the Masjid, along with others accused, demolished the wall which separated the said property from the Waqf property/Mosque. A First Information Report (‘FIR’) was also registered in this regard by the occupants of the said property. However, it is stated that after the intervention of the police, the petitioner could reconstruct the wall that was demolished by the Respondent No. 3. Finally, various orders were passed by this Court in Writ Petitions filed by the occupants as also by the Petitioner leading to proceedings under the Waqf Act, 1995.

7. The Petitioner avers that since 2009 various notices for eviction have been issued by the Waqf Board and eviction orders have been passed by the Waqf Board and the SDM, the details of which have been given in the petition, against the workers/employees of the Petitioner, namely, Mr. Zainul, Mr. Sainul and Mr. Nafees. As per the Petitioner, no such eviction notices have ever been issued against the Petitioner in respect of the said property. Hence, the Petitioner seeks reinstatement in the said property.

8. It may be noted that as per the Eviction Order passed by the CEO of the Waqf Board dated 6th March 2009, against Mr. Zainul, the Petitioner - Mr. Zahir Ahmed had appeared on behalf of Mr. Zainul and was unable to show any authority under which both Mr. Zainul and Mr. Zahir Ahmed were occupying the said property. Accordingly, the CEO of the Waqf Board directed that Mr. Zahir Ahmed, Mr. Zainul and all other encroachers were liable to be evicted.

9. The Petitioner is aggrieved by Order dated 2nd March 2020 whereby the occupants were directed to vacate the said property by 5th March 2020 and the Order dated 5th March 2020 passed by the SDM, Chanakyapuri wherein it is recorded that an eviction drive was undertaken in respect of the said property and the possession of the said property was handed over to the Delhi Waqf Board.

10. Mr. K. Z Khan, ld. Counsel appearing for the Petitioner submits that the Petitioner has had continuous and uninterrupted possession of the said property, since the last several decades, and hence the Petitioner was not liable to be dispossessed.

11. On behalf of the Respondent-Waqf Board, Mr. Wajeeh Shafiq, ld. Counsel submits that the Petitioner’s father was discharging the duties of an Imam in the Mosque and the Petitioner had come into possession of the said property due to his father’s position of Imam. The Mosque was allotted by way of Gazette notification issued in terms of the agreement registered on 3rd July 1945 , by the Delhi Administration, in favour of the Delhi Waqf Board. Since then the Waqf Board is in occupation of the property which is described as under:-

‘APPENDIX A’ TO THE AGREEMENT REGISTERED ON

3RD JULY 1945 “The site is situated on the South half of the General Vista in the water channel near the junction of the Kingsway and man Singh Road, on the south side of the former and east of the latter. It measures about 0.095 of an acre and is bounded on the North by the water channel mentioned above, on the East & West by the same water channel and the grass lawns of the General Vista, on the South by the grass lawn of the Central Vista.

12. In order to prove the fact that the Petitioner’s father was the Imam, reliance is placed on the basis of electricity bills which are in the name of Mr. Abdul Majid who is the father of the Petitioner-Mr. Zahir Ahmed.

13. There are various writ petitions and proceedings in respect of the said property. The details of the same are –

• W.P (C) 1479/2018 titled ‘Zahir Ahmed v. Sub Divisional Magistrate Chanakyapuri and Ors’, • W.P (C) 11441/2017 titled ‘Mohd. Nafis and Anr. V. Delhi Waqf Board and Ors.’, • Suit No. 5/2018 titled ‘Mohd. Nafis & Anr. v. Delhi Waqf Board &

Anr.’ before the Waqf Tribunal • Civil Suit No. 597/1995 titled ‘Delhi Waqf Board v. Zaheed Ahmed & Rashid Ahmed’

Some of the relevant records and orders passed in the above proceedings have been placed before the Court. The sum and substance of the case of the Waqf Board is that the Petitioner was nothing but an encroacher in the Waqf property and cannot claim any rights in the said property.

14. Insofar as the dismissal of the suit filed by the Waqf Board in 1998, is concerned, it is submitted by Mr. Shafeeq that there was no adjudication on merits and the suit was dismissed due to non-filing of evidence.

15. On behalf of Respondent No. 3, who is the present Imam of the said Masjid i.e Mohd Asad, son of late Jalaluddin, it is submitted by ld. Counsel Ms. Lubna Naaz that the father of Respondent No. 3, was the Imam of the mosque since 1981. Shri Mohd. Asad is presently the Imam and is in occupation of the said property. Ld. counsel also relies upon proceedings in Suit No. 5/2018 titled ‘Mohd. Nafis v. Delhi Waqf Board’ before the Waqf Tribunal and the application for impleadment under Order I rule 10 CPC filed by the Petitioner to argue that the said fact has not been disclosed in the present petition. Further, it is argued that, vide the order dated 25th July, 2018, passed by the Waqf tribunal, the interim order passed in favour of the Plaintiffs, in the said suit, who are allegedly the workers of the Petitioner, was vacated. On the basis of the pleadings, it is argued that the Petitioner and his alleged workers were unauthorized occupants. Reliance is placed upon ‘Chhedi Lal Misra v. Civil Judge, Lucknow & Ors.’ 2007 (4) SCC 632 to argue that unauthorised occupants cannot claim any rights on the Waqf property.

16. Heard. The present petition is yet another example of the manner in which public places of worship are converted into private tenements and rights are sought to be claimed by priests, Pandits, Imams, caretakers and their families, in an illegal and unauthorised manner. Such public places of worship are converted into residences and are occupied by the persons who take care of the said places including by their extended families, domestic help and other trespassers, which would be contrary to law. In some cases, this Court has also noticed that the said places of worship are extended beyond the allotted land and are converted into commercial property, and rents/lease amounts are also sought to be collected in an illegal and unauthorised manner. Even in the present case it is not clear as to the basis on which so many persons who are described as `workers’ were inducted by the Petitioner into the property and they continued to occupy the property for several years.

17. As can be seen from the facts of the present case, the Masjid in question is located in the centre of Delhi, near India Gate. The land allotted to the said Masjid in 1945 was 0.095 acres. The Petitioner herein, on a query from the Court, specifically admits that there is no title document to the property in question in his favour, which obviously there cannot be. The Petitioner's father was an Imam in the mosque and in the Court’s opinion, it could be due to this reason that the Petitioner unauthorisedly came into occupation of the said property. The initial case of the Petitioner in the writ petition and other contemporaneous documents is that Mr. Nafees, Mr. Zainul Khan, Mr. Sainul are all employees/occupants, who were permitted by the Petitioner to occupy the said property.

{A} The relevant extracts of the writ petition are -

“…Brief facts of the case are as under:

…VII. That after a long period of the aforesaid order dated 14.10.1998,notice dated 05.01.2009 under sub section (1) of section 54 of the Wakf Act,1995 was issued by the respondent no. 2 against the workers/employees of the petitioner namely Mr. Zainul and Mr. Sainul, for encroachment/unauthorised occupation Inside Masjid Zabta Ganj, Main Man Singh Road, India Gate, New Delhi. However, no such notice was issued to the petitioner. Copy of aforesaid notices are annexed herewith as Annexure P-5 (Colly).

VIII. Said notices dated 05.01.2009 were duly replied by the petitioner vide reply dated 22.01.2009 and clarified that Mr. Zainul and Mr. Sainul are my (i.e. the petitoner’s) workers/employees and are living in the premises of the petitioner which is separate from the mosque but adjacent to the mosque and there is no question of any kind of encroachment inside the mosque. Thereby, claim of the respondent no. 2 i.e. aforesaid persons are unauthorised occupants of the property inside the mosque was denied by the petitioner. Copy of the aforesaid reply to notices are annexed herewith as Annexure P-6 (Colly).

IX. However, the respondent no. 2 issued reminder notice dated 09.02.2009 under sub-section (1) of Section 54 of the Wakf Act,1995 against the workers/employees of the petitioner namely Mr. Zainul, Mr. Sainul and Mr. Nafees for encroachment /unauthorised occupants of property Inside Masjid Zabta Ganj, Main Man Singh Road, India Gate, New Delhi. Same was duly replied by the petitioner vide reply dated 28.02.2009 on the same line of reply as made in dated 22.01.2009.Copy of the aforesaid reminder notices dated 09.02.2009 and replies dated 28.02.2009 to those notices are annexed herewith as Annexure P-7 (Colly).

X. That despite aforesaid replies to notices and representation by the petitioner before good officers of the respondent no. 2, the respondent no. 2 passed an eviction order dated 06.03.2009 under Section 54 of The Wakf Act,1995 against Mr. Zainul, Mr. Sainul and Mr. Nafees. Aggrieved by the aforesaid eviction order and anticipating evil intention of the respondents, the petitioner issued a legal notice dated 23.03.2009 through his counsel and again clarified that Mr. Zainul, Mr. Sainul and Mr. Nafees are not residing inside the Masjid property, Zabta Ganj, Man Singh Road, India Gate, Delhi rather they are residing with the petition in his premise which is separate from the Masjid/ Waqf property as confirmed by Ld. Civil Court vide order dated 14.10.1998.Consequently, the petitioner called upon the respondent no. 2 to withdraw the eviction order. Copy of eviction orders dated 06.03.2009 passed by the respondent no. 2 and a copy of legal notice dated 23.03.2009 are annexed herewith as Annexure P-8 (Colly).

…XII. That workers of the petitioner namely Mr. Zainul and Mr. Nafees in connivance with the respondent no. 3 had stolen electricity meter no. K. No. 70483/L Dom installed inside the premises of the petitioner. Therefore, the petitioner asked his workers to leave the job & premise in respect of the stolen meter, the petitioner filed a police complaint bearing DD No. 26B dated 27.06.2019 before the SHO, Tilak Marg. Copy of the police complaint dated 27.06.2019 is annexed herewith as Annexure P-10.

The Petitioner prefers to file present writ petition on the inter alia following grounds-

GROUNDS …K. Because in the year 2009 & 2013 and subsequently in 2019-20,the respondent no. 1 and 2 have issued a number of notices, reminder notices and eviction orders under section 54 & 55 of The Wakf Act,1995 to the workers/employees of the petitioner for encroachment and eviction from Inside Zabta Ganj Masjid, Man Singh Road, India Gate, New Delhi….

…O. Because the workers/employees of the petition namely Mr. Zainul and Mr. Nafees in connivance with the respondent no. 3 had stolen electricity meter installed inside the premise of the petitioner. Therefore the petitioner asked his workers to leave the job & premise and in respect of the stolen meter, the petitioner filed a complaint bearing DD No. 26B dated

27.06.2019 before SHO Tilak Marg.”

(b) Petitioner’s reply dated 22nd January 2009 to the eviction notice issued by the CEO, Waqf Board dated 5th January 2009 reads:

“22.01.2009 The Chief Executive Officer, Delhi Wakf Board 5028,Darya Ganj, New Delhi-110002 Subject: Notice under sub-section (1) of Section 54 of the Wakf Act 1995 Please refer to your notice No. 12/SO/1679/DWB/2008/28 dated 5.1.09 regarding the above.

This notice has been sent to Zainul who is my worker and is living in my premises which is separate from the mosque but adjoining the mosque. There is no question of any kind of encroachment upon the mosque.

In view of the above, the above said notice may be treated as withdrawn.

Sd.

(ZAHIR AHMED) Masjid Zabta Ganj Man Singh Road New Delhi”

(C) The reply of the Petitioner dated 22nd January 2009 to the eviction notice issued by the CEO, Waqf Board dated 5th January 2009 in respect of Mr. Sainul is extracted below-

“22.01.2009 The Chief Executive Officer, Delhi Wakf Board 5028,Darya Ganj, New Delhi-110002 Subject: Notice under sub-section (1) of Section 54 of the Wakf Act 1995 Please refer to your notice No. 12/SO/1681/DWB/2008/30 dated 5.1.09 regarding the above.

This notice has been sent to Sainul who is my worker and is living in my premises which is separate from the mosque but adjoining the mosque. There is no question of any kind of encroachment upon the mosque.

In view of the above, the above said notice may be treated as withdrawn.

Sd.

(ZAHIR AHMED) Masjid Zabta Ganj Man Singh Road New Delhi”

(D) The reply of the Petitioner dated 28th February 2009 to the Reminder eviction notice issued by the CEO, Waqf Board dated 9th February 2009 in respect of Mr. Nafees is extracted below-

“28.02.2009 The Chief Executive Officer Delhi Wakf Board

5028,Daryaganj New Delhi-110002 Sub: Notice under Sub- Section (1) of Section 54 of the Wakf Act 1995.

Pl. refer to your Notice No. 12/SO/1680/DWB/2008/127 dt. 9.2.09 regarding the above.

The notice has been sent to Nafees who is living with me in my premises which is separate from the Mosque but adjoining the mosque. There is no question of any kind of encroachment upon the Mosque.

In view of the above, the above said notice may be treated as withdrawn.

Sd.

(ZAHIR AHMED) Masjid Zabta Ganj Man Singh Road New Delhi”

(E) The relevant extract of the Legal notice seeking withdrawal of the eviction orders passed by the CEO, Delhi Waqf Board dated 23rd March 2009 issued by an Advocate – Mr. Sheikh Imran Alam on behalf of the Petitioner reads-

“LEGAL NOTICE Sir, Under instructions from /and on behalf of my client Sh. Zaheer Ahmad, who is in lawful possession of the Premises adjoining to Masjid Zabta Ganj, India Gate ,New Delhi and also on behalf of Mr. Zainul, Mr. Sainul and Mr. Nafees all residing in the premises adjoining to Masjid Zabta Ganj, India Gate, New Delhi, serve upon you the following legal notice:

1. That the above said my clients have been served with the notice u/s 54 of the Wakf Act,1995 which were duly replied through my client Zaheer Ahmad mentioning therein that the my client Zaheer Ahmed is in the lawful possession of the premises adjoining to the Masjid Zabta Ganj, India Gate, New Delhi and Mr. Zainul,Mr. Sainul and Mr. Nafees are residing in the premises with his consent. And therefore ,they are not encroachers on the Masjid Zabta Ganj, India Gate, New Delhi.”

18. In all the above pleadings and correspondence the Petitioner acknowledges that the said three individuals are occupying the said property with his consent. However, the stand of the Petitioner kept vacillating during the course of hearing. The said persons were first described as workers, domestic help, employees etc., and finally when the Court put a query that the Petitioner ought to pay damages for illegal occupation of Waqf property, the ld. Counsel for the Petitioner suddenly sought to resile from the earlier submissions and described the said individuals as trespassers.

19. The initial suit of 1995 filed by the Waqf Board was dismissed on 14th October, 1998 on the ground that the Waqf Board and the Defendant did not give any evidence. A perusal of the said order itself shows that the said order was contradictory in nature.