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Encroachment Of Public Land In The Garb Of A Place For Worship

In a latest, landmark, laudable and learned judgment titled Bal Bhagwan vs Delhi Development Authority in CM(M) 416/2019 delivered just recently on December 18, 2020 while dismissing a suit filed by a temple manager seeking permanent injunction against the Delhi Development Authority (DDA) from forcefully dispossessing him from 4 temple properties built on public land, a Single Judge Bench of Justice Pratibha M Singh observed that a trend could be seen of public land being “sought to be encroached upon under the shelter of a place of worship. As is seen in a large number of cases, rights are claimed by parties under the garb of temples or other places of worship located on government land.” We all know fully well how suddenly photos of some God or saint etc appear on some vacant land adjoining road or even in middle of road and how people start worshipping there and gradually a religious shrine in form of temple or dargah etc appears there and what is most concerning is that we see all this happening even in “Army Cantonment” areas also which sometimes even pose a security threat as enemy spies of foreign nations sometimes take refuge there as we have heard in news channels also but most alarmingly is mostly always either ignored or taken most lightly and all this happens right under the nose of the district administration! Moreover such illegal structures sometimes pose other problems also apart from security threats! So what Justice Pratibha M Singh has pointed out is nothing but the stark truth! 

While stating the brief background of the case, Justice Pratibha then mentions in para 4 that, “The present petition arises out of a suit for permanent injunction filed by the Petitioner/Plaintiff (hereinafter, “Plaintiff”) - Mr. Bal Bhagwan against the Delhi Development Authority (hereinafter, “DDA”) seeking permanent injunction restraining the DDA from demolishing or forcibly dispossessing the Plaintiff from three temple premises namely Mandir Kali Mai, Mandir Bada Beer Dham and Mandir Shivji Maharaj situated on private land bearing Khasra No. 1075/803/50 measuring 4 bigha 3 biswas and a temple premises of Sankat Mochan Bajrang Bali on land measuring 2 bigha 11 biswas in Khasra No. 1074/803/50 of village Khampura Raya, Delhi bearing MCD No.2151/18, Swami Onkara Nand Ashram, New Patel Nagar, New Delhi (hereinafter, “suit property”).” 

While elaborating further, it is then stated in para 5 that, “The Plaintiff had moved an application for interim injunction under Order XXXIX Rules 1 and 2 CPC before the Civil Judge. Vide order dated 10th December, 2018, the Ld. Civil Court dismissed the application for injunction. Thereafter, the Plaintiff preferred an appeal, which was also dismissed vide the impugned order dated 27th February, 2019. This Court, at the time of admission of the present petition, on 12th March, 2019, issued notice and directed that no coercive steps be taken by the DDA against the Plaintiff.”

To put things in perspective, it is then envisaged in para 6 that, “The case of the Plaintiff has been captured in brief in the plaint. The Plaintiff claims that he is the Chela of Late Swami Onkara Nand who was managing/running four temples situated on the suit property. The temples were located on two separate khasras, with three temples being located on Khasra No. 1075/803/50 and one temple being located on Khasra No.1074/803/50. It is claimed that the said four temples are in the possession of the Plaintiff as they are managed by him and they have been running at least since the 1960s.”

While continuing further in the same vein, it is then pointed out in para 7 that, “Swami Onkara Nand expired on 10th May, 1982 and by way of a registered Will dated 13th April, 1982, the Plaintiff was made the manager of the entire temple complex. It is claimed that the DDA attempted to take forcible possession of the suit property and dispossess the Plaintiff, leading to the filing of the suit for permanent injunction. The DDA filed its written statement and claimed that the entire land is government land and that the Plaintiff is in illegal occupation of the same. It took the stand that the Plaintiff, who has no rights in the suit property, cannot prevent the DDA from taking over the land which is meant for rehabilitation of the Kathputli Colony dwellers and had been vested in the DDA by the Ministry of Rehabilitation way back in 1982. Both Courts have agreed with the DDA and have dismissed the Plaintiff’s application for interim injunction.”

On one hand, it is mentioned in para 8 while stating plaintiff’s submissions that, “Mr. Kapur, ld. counsel appearing for the Plaintiff has urged before this Court that insofar as the DDA is concerned, the issue only relates to 2 Bighas and 11 Biswas as the other land has been held to be Shamlat Deh land. The stand of the DDA is that the land was acquired and was put at its disposal. However, the Plaintiff claims that he himself is in settled possession of the land in question. Reliance is placed on the Jamabandis dating back to 1946-47 and the Khasra Girdawaris dating back to 1967-68, which show the existence of the temple. Mr. Kapur specifically relies upon the various documents of the Revenue Authorities filed by the DDA to show that these documents themselves establish the existence of the temple as also the fact that the same was managed by Swami Onkara Nand. Vehement reliance is also placed on an alleged copy of DDA’s City Planning Wing’s document which shows the regularisation of New Patel Nagar area of which the suit property is alleged to be forming part. It is claimed that the survey which was conducted in this area on 15th September, 1977 itself shows the existence of a temple on the said land.”

On the other hand, it is then mentioned in para 20 while stating DDA’s submissions that, “Mr. Rajiv Bansal, ld. senior counsel along with Mr. Dhanesh Relan, ld. counsel appears for the DDA. He raises two preliminary objections. The first preliminary submission is that the petition is under Article 227 of the Constitution of India which is not an appellate remedy. The scope of judicial review is limited in such a petition. The Court is not to act as an appellate authority and neither is such a petition to be treated as a second appeal. The Court cannot interfere unless there is flagrant miscarriage of justice or abuse of principles of law. The Trial Court’s finding has to be perverse or patently erroneous for the Court to exercise jurisdiction in such a petition. It is submitted that the Court cannot re-appreciate the evidence and also cannot reverse the finding on insufficiency of evidence. The Court also cannot substitute the trial court’s finding with its own opinion in the matter. It is further submitted that if there are two concurrent findings, the power under Article 227 ought to be sparingly exercised. Reliance is placed on the following judgments:

a) Annad Kumar v. Dinesh Kumar, (2017) 125 ALR 75 

b) Surender v. Roshani & Ors., 2010 SCCOnline Del 2482 

c) Estralla Rubber v. Dass Estate (P) Ltd., (2001) 8 SCC 97 

d) Ouseph Mathai & Ors. v. M. Abdul Khadir, (2002) 1 SCC 319

e) Nawab Shaqafath Ali Khan v. Nawab Imdad Jah Bahadur, (2009) 5 SCC 162.”

Truth be told, it is then disclosed in para 37 that, “An application under Order XXXIX Rules 1 & 2 CPC, which was rejected by both the Trial Court and the Appellate Court, is the subject matter of the present petition, which has been argued extensively by ld. counsels for the parties. This comes as no surprise as the land involved is precious land located in the heart of Delhi in which the Plaintiff wishes to continue to retain possession.”

Significantly, it is then pointed out in para 39 that, “A perusal of the plaint shows that the Plaintiff claims ownership in the suit property. Paragraph 10 of the plaint reads as under: 

“10. That the plaintiff is owner in possession or a transferee/successor from the original owner of the suit property through documents in his favour and is legal occupier of the suit property.”

However, before this Court, the Plaintiff concedes that he does not have any document of title in respect of the suit property. Thus, the only question is whether the Plaintiff is entitled to interim relief from being dispossessed.”

No less significant is what is then stated in para 40 that, “In the plaint it is admitted that the land is government land and that the Plaintiff has rights in the same by way of adverse possession. The relevant extract of the plaint reads as under:

“That no action to take forcible possession after dispossessing the plaintiff from the suit land can be taken as the same is barred by Section 27 read with Article 112 of Limitation Act, 1963. The government can take action for eviction and for possession against the alleged illegal occupant on the government land within 30 years and the period of limitation had began to run. under this act against a like suit by a private person and hence the threat of alleged action of dispossession/forcible dispossession by the defendant is barred by time as the right of the defendant has extinguished in respect of the suit property. 

Even otherwise the plaintiff is owner by adverse possession in view of notice of defendant issued in the month of November, 1982 to the plaintiff and other residents of the area site of New Patel Nagar in respect of alleged acquired land of village Khampur Raya, Delhi.”

For the sake of clarity, it is then stated in para 41 that, “However, before this Court the Plaintiff’s case has changed and is one of settled possession and not of adverse possession. The issue, therefore, is very short - Whether the Plaintiff claiming settled possession without any ownership can be dispossessed or is entitled to injunction against dispossession?”

Of course, it cannot be ignored that Justice Pratibha then points out in para 44 that, “The Trial Court vide its order dated 10th December, 2018 held as under:

i. That one part of the suit property lies in Khasra No.1074/803/50 and another part lies in Khasra No.1075/803/50;

ii. Insofar as Khasra No. 1074/803/50 is concerned, the same is part of acquired land, which was purchased by the DDA on 2nd September, 1982. The acquisition is not challenged and the same is more than 60 years old. The Plaintiff, thus, encroached in Khasra No. 1074/803/50.; 

iii. Insofar as Khasra No.1075/803/50 is concerned, the same is private land i.e. Shamlat Deh land. Following the judgment in Jagpal Singh (supra), the Trial Court held that Shamlat Deh land is meant for the common use of the village and no one person can claim rights in the same.;

iv. That the Plaintiff does not have title on either part of the suit property and, at best, he is an encroacher.;

v. The Plaintiff claims ownership on one hand and on the other hand, claims rights by way of adverse possession.;

vi. The judgment in Rame Gowda (supra) has been considered by the Trial court along with the judgment in Maria Margarida (supra). The Trial Court holds that the moment the pleadings are filed by the parties and the Court applies its mind to the matter and finds that the Plaintiff has no title to the land, the requirement of due process of law is complete. The Plaintiff was found to be an unauthorised occupant who had no right to remain on the land. Thus, the injunction application was dismissed.”

What’s more, it is then rightly noted in para 45 that, “The Plaintiff filed an appeal against the said order, which was heard by the ld. ASCJ. The Appellate Court, vide its order dated 27th February, 2019, held that the land belongs to the DDA and the Trial Court has rightly rejected the prayer for injunction.” 

Briefly stated, it is then also conceded in para 46 that, “The petition before this Court is under Article 227 of the Constitution of India. Clearly, the extent of intervention in such cases is quite limited. There are concurrent findings by the Trial Court and Appellate Court. All the relevant facts have been considered by the Courts below. Thus, in view of the settled legal position, no interference would ordinarily be called for in the writ petition.”

Be it noted, it is then rightly mentioned in para 62 that, “Several judgments on various propositions have been cited, which, according to the Court, do not require any consideration in the present case. The main question to be determined is whether the Plaintiff, who is in settled possession, can be dispossessed in an application under Order XXXIX Rules 1 & 2 CPC. The answer is a clear yes.” 

Furthermore, it is also pointed out in para 63 that, “Insofar as the Shamlat Deh land is concerned, the Plaintiff cannot claim any rights in the same as the same vests for the common interest of the villagers. This Court agrees with the stand of the DDA that the land has been urbanised and once urbanization takes place, the village owners have no rights.”

More significantly, it is then elucidated in para 66 that, “Though the land in question was vested in the DDA several years ago, the DDA is yet to obtain possession of the land. An important developmental project has been derailed because of the present litigation as the DDA continues to make valiant attempts to obtain possession in accordance with law. The photographs in the present case are extremely revealing. The mandir constitutes a miniscule portion of the entire land which has various commercial shops and residences. The case of the DDA is that the Plaintiff is earning huge revenues by collecting rent from these occupants, however, this Court does not see the need to go into this aspect. Clearly, the Plaintiff, or anyone occupying or claiming rights through the Plaintiff, does not have any right to continue to remain in possession of the suit property. Ld. counsel for the DDA has submitted that an alternative accommodation has been given to the dwellers in the colony. It is for the DDA to ensure that the same is provided to everyone in occupation, in accordance with its policy.”

Most remarkably, most significantly and most appropriately, what forms the cornerstone of this extremely laudable judgment as illustrated by Justice Pratibha finds mention in para 67 in which it is stated explicitly, elegantly and effectively that, “Finally, this Court expresses grave concern over the fact that public land is sought to be encroached upon under the shelter of a place of worship. As is seen in a large number of cases, rights are claimed by parties under the garb of temples or other places of worship located on government land. This trend has been repeatedly frowned upon by the Supreme Court and other courts. The Supreme Court, in its judgment in Union of India v. State of Gujarat & Ors., (2011) 14 SCC 62 has, in fact, taken cognizance of this menace and directed State Governments and Union Territories to review the situation and take appropriate action in an expeditious manner. The relevant extract of the judgment reads as under: 

“5. As an interim measure, we direct that henceforth no unauthorised construction shall be carried out or permitted in the name of temple, church, mosque or gurdwara, etc. on public streets, public parks or other public places, etc. In respect of the unauthorised construction of religious nature which has already taken place, the State Governments and the Union Territories shall review the same on case-to-case basis and take appropriate steps as expeditiously as possible.””

Equally significant is what is then stated in para 68 that, “Such attempts by unscrupulous parties ought to be discouraged, inasmuch as the occupants, under the garb of a place of worship, turn the land into a completely unplanned encroachment by hundreds of people. The authorities have an obligation to ensure that in public land, places of worship are not created in this manner. Moreover, in the present case, an infrastructure project is being completely crippled due to the pendency of this litigation. This would be contrary to even public interest.”

Finally, it is then held in the last para 69 that, “The land, being public land, the Plaintiff is not entitled to any relief. The petition is dismissed with costs of Rs.1 lakh to be deposited by the Plaintiff with the High Court of Delhi (Middle Income Group) Legal Aid Society. All pending applications are also disposed of.” 

To sum up, Justice Pratibha M Singh of Delhi High Court has rightly, remarkably and reasonably pointed out that encroachment of public land in the garb of a place for worship ought to be discouraged. For this to happen effectively, the district administration must immediately swing into action. For this to happen in turn the State Government must promptly swing into action and not be guided by vote-bank politics as most unfortunately we see happening on a regular basis in our country and all those parties who have been ruling different states since independence till now are equally responsible! 

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh

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