Right Of Way: Delhi High Court Allows Demolition Of Portions Of Mandir, Masjid, Says Larger Public Interest Outweighs Concerns Of Places Of Worship

The Delhi High Court has observed that places of worship cannot encroach public land and hinder developmental activities meant for the larger segment of the public.

Justice Prathiba M Singh made the observations while paving the way for demolition of portions of a Mandir and a Masjid situated at Jheel ka Piao in Delhi’s ITO area for making the pedestrian pathway uniform.

The court observed that the Public Works Department  (PWD) has to be permitted to make the pedestrian pathway uniform so as to not cause inconvenience to pedestrians on the busy stretch of road which also has access to a Metro station.

“For the said purpose, if some portion of the Mandir/Masjid is to be broken/demolished, the same would have to be permitted by the Court,” it said.

The court was hearing a plea filed by caretakers and bearers of a “Sanatan Dharam Mandir or Prachin Shiv Mandir”, challenging a letter dated October 31, 2022, issued by Delhi Government’s Executive Engineer. 

The letter stated that encroachments and unauthorized occupation be removed from the PWD land, including the mandir. It was the petitioners’ case that the temple had not done any unauthorized encroachment and its removal would cause inconvenience to the devotees.

Delhi Waqf Board was later impleaded in the matter after it was brought to the notice of the court that a Masjid, being run by the Board, was also located adjacent to the temple.

The Delhi Government’s counsel placed on record various photographs to show that the pedestrian pathway was being obstructed by both mandir and masjid. It was submitted that both places of worship were abutting into the pathway.

Perusing the photographs on record, the court said:

“The issue that has been raised in the present petition concerns the development of the pedestrian pathway in an extremely busy road near the ITO. The photographs which have been placed on record show clearly that the Mandir and Masjid are abutting the pedestrian pathway.”

It noted that the line sketch filed by the PWD shows that there is no uniformity in the pedestrian pathway and that it needs to be made uniform and matched along with the pedestrian pathway across the entire stretch of the road, failing which, pedestrians’ safety would be seriously affected.

Observing that the usual conflict which court faces in such cases is the “striking of balance between the larger public interest and the interest of the devotees”, Justice Singh relied on the decision of Gujarat High Court in Gulam Kadar Ahmadbhai Menon v. Surat Municipal Corporation.

It noted that decision held that if such places of worship are taken away for the purposes of carrying out the expansion of the road, it would not mean in any manner that a religious structure is being disrespected.

Observing that the larger public interest would outweigh the concerns raised by both Mandir and Masjid, the court said, “There is no gainsaying that places of worship cannot be encroaching public land and hindering developmental activities meant for the larger segment of the public.”

The court directed that the concerned Executive Engineer of PWD would confer with the caretakers of both Mandir and Masjid and arrive at a consensus as to the time and date on which the demolition would take place.

“Since the wall of both the Mandir and the Masjid are abutting the pedestrian pathway, the walls would be required to be demolished. If upon conferring with the said caretakers, there is a need to make some fresh construction in order to secure area of the Mandir and the Masjid, the same shall be done at the cost of the PWD,” it said.

The court directed that the Mandir and Masjid or their occupants shall not be treated as unauthorized occupants and no penalties or damages would be liable to be levied against them.

“In addition, the Court directs that the PWD shall ensure that one toilet facility each for the Mandir and the Masjid shall be provided with proper hand washing area, if required. The area for offering of prayers by the devotees shall be tiled by the PWD at its own cost. The area for the said purpose shall be agreed upon between the caretakers/occupants of the Sanatan Dharam Mandir and the Masjid,” it said.

The court directed the Delhi Police to provide all cooperation and necessary assistance to ensure that the directions are implemented without any disturbance or law and order situation.

Title: DEVENDRA KUMAR & ORS. v. STATE (NCT OF DELHI) & ORS.

Citation: 2023 LiveLaw (Del) 181

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