RADHEY SHAM Vs. LT GOVERNOR DELHI ADMINISTRATION DELHI

JUDGEMENT

(1.) -This order will dispose of Civil Writ Petition No. 546 of 1969 (Brij Mohan . Lt Governor and others) and Civil Writ Petiton No. 550 of 1969 (Radhey Sham . Lt. Governor and others). Except for some minor variations in certain affidavits, the facts of the case are practically the same and I will, therefore, confine my statemeuld be open to public and would be a public place in terms of Article 15 of the Constitution of India. It would be anamenity th to the petitioner and his family members and a place of public recreation where any member of the public, including the petitioner and his children, would have free access without any discrimination on the basis of rac religion, sex creed etc. etc. that the Delhi Improvement Trust the predecessor of sixth respondent (Delhi Development Authority) requested the Secretary. Local Self-Government, Delhi State to procure the approval of Union of India for the transfer of the area to the then Municipal Committee; that the Delhi Development Authority vide its resolution No. 132 dated March 26, 1958, gave its approval, subject to the sanction of the Union of India, to the allotment of the area to Municipal Corporation of Delhi for the purpose of laying out a children park and fixed a rental of rupee one per annum payable by the Municipal Corporation to the Delhi Development Authority; that in 1961 a development plan was prepared and the said area "measuring 750 sq. yards or thereabout was chosen and selected for laying out of a children park."; that the Central Government accorded its approval to the Delhi Development plan prepared by Delhi Development Authority which, inter alia, included the lay out of the children park in the said area; that the Delhi Development Authority "found in 1961 that this land belonged to the Government and was a vacant site and eminently suitable and available for laying out of a children park"; that according to section 429 of the Delhi Municipal Corporation Act, after the preparation of a Master Plan or a Zonal Development scheme or housing scheme can be put into operation by the Commissioner of Municipal Corporation of Delhi "in so far as it concerns the area within the municipal limits of Delhi"; that towards the end of the year 1968, certain unauthorised structures were set up by some Muslims in a part of the said area; that Respondents 2 to 5 "cannot claim any interest in a property which does not fall within the definition of section 3 (1) of the Muslim Wakf Act, 1954"; that no person professing Islam dedicated part of the said area because it did not belong to any person but belongs to public in general and is not the property of any particular minority or majority community of .Delhi; that consequently the Delhi Wakf Board (second respondent) could not claim any interest in the said piece of land; that the Municipal Corporation served notice in respect of the said unauthorised construction, directing removal thereof: that the unauthorised occupants attempted to lend a religious colour to the situation that arose on account of demolition notice and raised a plea that the said alleged unauthorised structure was in fact "Sikandaria Mosque" which had stood there for a very long time; that this allegation was false to the knowlmposed.

(2.) It is appropriate to set out the earlier order of demolition dated May 14, 1969, issued by the Lt. Governor. The said order reads :

(3.) Mr. Lekhi who led the arguments in Civil Writ 550 of 1969 drew our attention to certain affidavits in his effort to show that in fact the mosque never existed on the said site till about 1968 when it was set up only to grab the area by giving the matter a religious colour. He referred us to the counter-affidavit of Zahirud-Din Siddiqi, Assistant Secretary, Delhi Wakf Board, in which is stated that "the property in dispute is known as Masjid Sikandria lmliwali Municipal No. 6515, Ward No. XIV, with its allied land. It consists of a mosque and appurtenant land measuring 75' 3" x 93' with a boundary wall on all sides and entrance gate..........". Mr. Lekhi said that in fact No. 6551, Ward No. XIV, is a house situate about 400 yards away from the land and the said unauthorised mosque bears No. 6515A. He drew our attention to photograph (Exhibit R.W. 2/5) annexed to the counter-affidavit of Shri Siddiqi on which it is inscribed "Shahi Masjid Sikandria 6515A" and to Annexure G to the petitioner's affidavit in the rejoinder to the counter-affidavit of Shri Siddiqi which according to Mr. Lekhi shows that building bearing No. 6515 in ward No. XIV is not a mosque but a house. From all this, he wanted us to deduce that the construction was unauthorised and the lieutenant Governor therefore could not direct its re-construction as he has done by impugned order dated June 27, 1969. The second ground of attack put forward by Mr. Lekhi was that the property did not belong to the Wakf and therefore the Lieutenant Governor could not have directed the Commissioner, Delhi Municipal Corporation "to forthwith sanction the reconstruction by or on behalf of Delhi Wakf Board of portion demolished to the extent as may restore the shape and position of building as it existed on 26th day of May 1969. . . .". To further support this argument, he referred to the affidavit of Shri M.D. Tyagi filed on behalf of the first and the third respondents, the Lieutenant Governor of Delhi and Union of India respectively, wherein Shri Tyagi says "the property in dispute described in the said paragraph is a Muslim Wakf property known' as Masjid Sikandria lmliwali Municipal No. 6515, Ward No. XIV with its allied land, consisting of a mosque and appurtenant land with a boundary wall on all sides and entrance gate. This mosque had been in existence on the land for a long period of time." Mr. Lekhi pressed on us to pronounce these allegations as false having regard to the statements contained. in the counter-affidavit of Shri M. L. Mongia, Secretary, Delhi Development Authority, that the revenue records show the land as a vacant site; that the land belongs to the Government and is vested in the Delhi Development Authority for the purpose of management and that "according to a letter dated 16-1-1963 received from the Municipal Corporation of Delhi by the answering respondent, it transpires that a sign board with the words "Shahi Masjid Sikandari Shahid Qadimi" was- found affixed on the boundary wall of the plot in question" and in the counter-affidavit of Mr. A. J. Kundan filed on behalf of the Lieutenant Governor, 1st respondent in the connected Writ Petition No. 546 of 1969, in paragraph 10 whereof a reference has been made to the affidavit filed on behalf of the sixth respondent. In the affidavit filed by Shri M. L. Mongia on behalf of the sixth respondent, Delhi Development Authority in Civil Writ 546 of 1969, it is again stated that "the land in question belongs to the Central Government and is under the control and management of the answering respondent". Mr. Lekhi contended that if mosque had existed for time immemorial as alleged, a resolution could not have been passed in March 1958 by Delhi Development Authority giving approval to the allotment of the land to the Municipal Corporation of Delhi for laying out a children park.