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Judgment
Gita Mittal, J.—This writ petition has been filed by the Auqaf Protection Council claiming to be consisting of the local residents of the area having the object to protect and safeguard Wakf properties and maintain them for the welfare of muslims. Petitioner Nos. 2 to 5 are stated to be local residents of the area who claim to have the same object. The writ petition has been filed praying for the following relief:
i) to issue a writ n the nature of Mandamus thereby directing the respondents No. 1 and 2 not to disturb and interfere into the peaceful enjoyment of the petitioners in Wakf property in any manner in Khasra No. 142, measuring 2 Bigha and 6 Bighas in Khasra No. 140 & 141, Village Inderprastha, Mata Sundari Lane, Kotla Road, New Delhi-110002 and
ii) to direct the respondents Nos. 1 and 2 not to sell out or part with possession to any third party, the aforesaid property in question, in any manner.
iii) Pass any other further order or directions which this Hon''ble Court may deem fit and proper to secure the ends of justice.
The petitioners have alleged that land measuring 8 bighas in khasra No. 142 and 6 bighas in khasra Nos. 140 and 141 situated at village Inderprastha in the revenue and wakf record is wakf property. According to the petitioners, the members of the petitioner No. 1 and the petitioners are peacefully residing in the area measuring about 2 bighas of khasra No. 142 of the village Inderprastha. The material averments with regard to the ownership of the land and the occupation of the same as stated in the writ petition are as hereunder:
That the land in question is the Wakf property. The area in question is eight bighas in Khasra No. 142 and 6 Bigha in Khasra No. 140 and 141 situated at Village Indesrprasth in the revenue and Wakf record. The photo copies of the revenue record and Wakf Gazettes with its translation with site plan are being filed herewith and marked as Annexure ''B'' (Colly)
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That it is pertinent to mention here that Mata Sundari Gurdwara is existing at the East side of the property in question. The Gurdwara Management has illegally encroached upon a big chunk of Wakf property. It is further necessary to say that the members of the petitioner No. 1 and the petitioners are residing peacefully in the areas measuring about 2 Bigha of Khasra No. 142 Village Inder Prastha, without any disturbance or interference.
It is further submitted that the respondent No. 1 several years back illegally constructed the Flats over about 6 Bighas land of Khasra No. 140 and 141 village Inder Prastha, most of those now have been demolished, only few flats in dilapidated condition are existing. The respondent No. 1 has also removed major part of its malba through its contractors from the site and more than half of this Wakf land is vacant.
It is pertinent to mention here that the respondent No. 1 without having any ownership documents is going to sell out and part with the possession to some private persons, area measuring about 6 Bigha in Khasra No. 140 and 141 and also bent upon to interfere and disturb into the peaceful enjoyment of the petitioners, without following due process of law. The officers of respondent No. 1 and 2 are coming frequently to the site in question and trying to encroach upon the Wakf property, thereby attempting to violate the order of the Hon''ble Supreme Court of India vide Annexure - A
The petitioners submit that there is an order on directing the respondents to maintain status quo and rule has been issued in Civil Writ petition No. 4496/1996 on 24th September, 2002. It is further submitted that the respondents are attempting to sell out and part with possession of wakf property having no documents of ownership. Reliance has been placed on an order passed by the Supreme Court of India on the 10th April, 1990.
The respondent No. 1 has appeared in answer to the notice to show cause and has filed a detailed counter affidavit stating that vide notification No. 775 dated 21st December, 1911, Union of India had acquired large tracts of lands leaving out 13 bighas for the public purpose of development of the new capital of India at Delhi. According to this notification, the land measuring 886 acres forming part of the village Indrapat was included in this large scale acquisition of land. Copy of this notification as well has the plan which indicated the boundaries of the proposed new capital of India at Delhi bounded by the Imperial pillars indicated in brown colour as well as showing the 13 unacquired sites left out of acquisition which are indicated in blue colour have been placed on record.
According to the respondent No. 1, vide a notification No. 166/1969 dated 10th December, 1969, the Secretary of the Delhi Wakf Board suo moto declared certain properties as belonging to the Delhi Wakf Board. It is contended that vide a letter dated 9th February, 1971, addressed to the Secretary, Delhi Wakf Board, the Land and Development Officer gave notice that the notification be cancelled failing which the Government of India would initiate legal proceedings for declaring the same as null and void and that these properties belonged to the Union of India.
Since no response was received from the Delhi Wakf Board, the Government of India filed various suits against the Board with regard to these properties which were the subject matter of the suo moto notification.
However, a representation was made by the Delhi Wakf Board to the Government.
On this representation, the suits were not proceeded with any further and the Government constituted the Burney Committee to go into this issue.
Ultimately, the Government of India had decided that 61 properties which actually belonged to the Land and Development Office and 62 properties which were under the jurisdiction of the Delhi Development Authority would stand allotted to the Delhi Wakf Board.
According to the respondent No. 1, the property which has been made the subject matter of the present writ petition did not even form part of the 123 properties which were decided to be allotted to the Delhi Wakf Board.
Based on the foregoing pleas, the respondent No. 1 has contended that the petitioners have no right, title or interest in the land which is the subject matter of the writ petition.
Respondent No. 1 has further submitted that this decision of the Government of India to allot these 123 properties to the Delhi Wakf Board was challenged in this Court in Civil Writ Petition No. 1512/1984 entitled Vishwa Hindu Parishad v. Union of India wherein the court had directed that status quo regarding the properties will be maintained and possession should be retained by the Government. There was a further order of restraint to the effect that if lease deeds have not been executed, the same should not be executed. It has been submitted that this order is in operation and the writ petition is still pending in court.
The respondent No. 1 has claimed ownership over the land on account of acquisition having been commenced under notification No. 775 dated 21st December, 1911 and the same having been completed in accordance with law. The Government of India is stated to have been constructed a government colony of double storey quarters on 313 acres on this land in the year 1984-1955 at the then cost of Rs. 5,62,711/- which were known as the Mata Sundari Road and Minto Road quarters.
The respondent No. 1 has also questioned the locus standi of the petitioner to file and maintain the writ petition. It has been contended that the petitioners are encroachers on government land who are interfering in the execution of the public work undertaken by the government.
It is further submitted that the property which has been made the subject matter of the present writ petition is actually plot No. 9 situated at Kotla Road which had been allotted as back as on 20th June, 2002 to the Government of Uttaranchal for the construction of the office of the Resident Commissioner and allied facilities. It is submitted that this was the site of the Mata Sundari Road and Minto Road quarters which were double storey quarters and were in the process of being demolished/re-developed.
It has further been stated that the plot allotted to the Government of Uttaranchal does not fall under khasra No. 140, 141 and 142 Village but falls under khasra No. 139 as disclosed by the survey.
Copy of a demarcation report by a Tehsildar with Patwari Kanungo from DDA (Revenue Department) has been placed on record with the plan of area.
The Delhi Wakf Board has also filed a counter affidavit in the writ petition and has alleged that a graveyard existed since time immemorial on the khasra No. 142 measuring about 8 bighas situated at Mata Sundari Lane and was so notified in the notification dated 25th September, 1975 at serial No. 78 on page 37 of the notification issued by the Delhi Wakf Board. It is further submitted that an application for demarcation of this property as Wakf property has been moved before the appropriate authority.
I have heard the parties at length and have been taken through the available record. The entire case of the petitioner rests on the plea that in the notification issued on the 25th September, 1975, a graveyard has been shown in 8 bighas of khasra No. 142 of the Mata Sundari Land.
From perusal of the writ petition in the paragraphs detailed hereinabove and also the oral submissions made before me, the petitioners have contended that they are residing on the land which is the subject matter of the writ petition. There is no existence of any graveyard whatsoever pleaded in the writ petition or in the oral submissions made before me except in the notification of 25th September, 1975.
On the contrary it is an admitted position in the writ petition that the Government of India had made several quarters on the land which is the subject matter of the writ petition.
This averment of the writ petitioners is supported by the deposition on behalf of respondent No. 1 and the record placed before me to show that several quarters were constructed as back as in the year 1945-1955. Therefore, so far as this Court is concerned, the land which is the subject matter of consideration in the writ petition relates to the land whereupon quarters were constructed and not to a graveyard.
It is to be noticed that the Government of India had commenced acquisitions under the provisions of the Land Acquisition Act, 1894 pursuant to a notification No. 775 dated 21st November, 1911. It is not disputed that acquisition of the land which was the subject matter of this notification was lawfully completed. Perusal of the notification No. 775 dated 21st December, 1911 shows that land admeasuring 886 acres in village Indrapat was acquired pursuant to this notification. Perusal of the site plan which is stated to set out the boundaries of the land shows that 13 pieces of land were not acquired by virtue of this notification. So far as the Mata Sundari Area is concerned, only the site of a gurudwara has been shown as unacquired. The only graveyard shown in this unacquired site on this plan is the graveyard which existed in Lady Harding area. Therefore, acquisition having been effected under the provisions of the Land Acquisition Act, 1911 and acquisition is stated to have been completed pursuant to such notification.
So far as the notification issued by the Delhi Wakf Board dated 25th April, 1975 is concerned, the issuance thereof is not disputed by the respondent No. 1. However the legality and validity thereof is disputed by the respondent No. 1. The respondent No. 1 has also submitted that pursuant to the recommendations of the Burney Committee, 123 pieces of land were decided to be handed over to the Delhi Wakf Board of land some of which were owned by the Land and Development Office and offered by the Delhi Development Authority. It is noteworthy that the respondent No. 3 has not disclosed the proceedings of the Burney Committee of the Government before this Court. The land appears to have been acquired pursuant to the notification 1911. The issue as to whether a subsequent notification under the another enactment could have been legally issued by the respondent No. 3 does not require to be answered in these proceedings as it has been stated that the same is the subject matter of other proceedings and also for the findings on the other aspects of the present matter.
The petitioner has placed reliance on the order dated 10th April, 1990 to contend that tombs and graveyards cannot be acquired at all. It is to be noticed that the matter before the Apex Court had arisen on account of issuance of the notification u/s 4 of the Land Acquisition Act, 1984. It was noticed in the order dated 10th April, 1990 that the notification itself had specifically excluded tombs and graveyards from acquisition.
In the instant case, no such terms in any notification have been pointed out.
In any case, I have noticed hereinabove the averments in the writ petition and the oral submissions to the effect that Government quarters stood constructed on the land. No tombs or graveyards have been pointed out on the land.
No record has been produced with regard to the actual existence of a graveyard on land which is the subject matter of the writ petition.
So far as the application of the respondent No. 3 is concerned for demarcation of the properties, the same would be dealt with by the concerned authorities as per law.
The petitioners have also placed reliance on an order dated 24th September, 2002 passed in Writ Petition Civil No. 4493/1996. Perusal of the same shows that it is only an interim order which was also passed because the respondent No. 3 in that writ petition did not place the requisite information which was sought by the court on record and in the absence of any reply of the respondent No. 3, the court had no other option in the matter. Status quo with regard to possession, nature and title of the property which was the subject matter of consideration was directed. There is no information available on the record of this case with regard to the issues which were urged on behalf of the petitioner in writ petition(C) No. 4493/1993 which were the subject matter of consideration and adjudication by the court. No judicial pronouncement of any issues after consideration of the matter on merits has been placed on record.
So far as the stand of Delhi Wakf Board is concerned, apart from contending that it had issued a notification dated 25th September, 1975 no other material with regard to the location or identity of the properties is forthcoming. Furthermore, material facts which ought to have been placed before the court have not been placed on record in support of the contentions. There is no rebuttal to the plea of the respondent No. 1 to the effect that the land had been acquired pursuant to a proceedings under the provisions of the Land Acquisition Act, 1994.
Learned Counsel appearing for the petitioners has vehemently contended that Sh. Jagmohan, the then Deputy Housing Commissioner of the Delhi Administration had addressed a letter dated 25th May, 1963 setting out the then Government policy with regard to areas under graveyards. Perusal of the letter shows that this letter was written with regard to some area under a graveyard which was stated to have existed in Village Sheikh Sarai which had been merged in the Malviya Nagar colony. The letter drew a clear distinction between land which was actually under graveyard and such land which was put to other uses.
The letter was written in the context of a specific property. In any case it cannot effect actions taken in 1911 and also does not relate to the area in question. The petitioners cannot place any reliance on this communication which has been quoted and cited out of context. The correspondence of which this letter is but a part has not been placed before me.
The respondent No. 1 has placed on record the plan indicting the location of the land and the report of the kanungo of the DDA. It has been pointed out that institutional plot Nos. 1 to 6 on the Kotla Road are located on the 8 bighas of land forming part of khasra No. 142. It has further been pointed out that institutional plot No. 7 on the Kotla Road is located on one biswas of land in the khasra No. 141 and that 7 biswas out of khasra No. 140 fall in the right of way that is the Kotla Road.
The respondents have submitted that the land on which the staff quarters earlier stood and on 20th June, 2002 stands allotted to the State of Uttaranchal is actually plot No. 9 of the institutional plots and falls in khasra No. 139 of the Village Indrapat, New Delhi and not in Khasra Nos. 140, 141 and 142.
The writ petition is therefore wholly misconceived.
The survey conducted by the respondent No. 1 was never objected to nor has any rejoinder been filed to the material factual averments made on behalf of the respondent No. 1.
The respondent No. 1 has also taken strong objection to the locus standi of the petitioner to bring and maintain the present petition.
On the other hand, according to the petitioners, any person or mutawalli has a right to bring and file the writ petition u/s 3 of the Delhi Wakf Board Act.
It is to be noticed that the petitioner has not claimed any right of ownership over any of the land which is the subject matter of the writ petition but has filed the writ petition on the plea of mere occupancy.
It is settled law that a jurisdiction of a court of law can be invoked by person only having a legal and vested right, title and interest in the subject matter of the land. Admittedly the petitioners have no legal or vested right, title or interest in the land.
In my view, therefore, the petitioners also have no locus standi to bring and maintain this writ petition.
For all the foregoing reasons, I find no merit in the writ petition which is hereby dismissed.
There shall be no order as to costs.