Encroachment Of Public Land In The Garb Of A Place For Worship Ought To Be Discouraged, Says Delhi High Court

Relying upon the judgment of the Supreme Court in the case of Union of India v. State of Gujarat & Ors., (2011) 14 SCC 62, she said that the Apex Court 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.

She quoted the relevant extract of the judgment, which states, "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."

She elaborated in her judgment 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."

In the present case, the land in question was located in the heart of Delhi, and pictures put on record by the DDA, the court noted that, "The mandir constitutes a miniscule portion of the entire land which has various commercial shops and residences."

The manager's case was that he had been shown to be in settled possession on the basis of the Jamabandis, Khasra Girdawaries and the DDA's own plan, therefore his possession could not be disturbed except in accordance with law. He further urged that the documents which were relied upon by the DDA show that the DDA had acquired the land in question from the Ministry on an 'as is where is' basis. Thus, when the transfer took place in 1982, since the temple was already in existence and the manager/his predecessor was managing the said temple, the DDA was well aware of the risk of taking over the said land.

The manager also argued that he had been paying all the necessary charges to the local authorities, including water, telephone, electricity and also the house tax - he submitted that his possession not being in dispute, the dismissal of his application under Order XXXIX Rules 1&2 Civil Procedure Code, was erroneous and is contrary to law.

Represented by Sr. Adv Rajiv Bansal, the DDA submitted that being filed under Art. 227 of the Constitution, the plea was not an appellate remedy and the court could not interfere with the lower court's order unless there is "flagrant miscarriage of justice or abuse of the principles of law". It further submitted that none of the documents placed on record by the manager proved his title over the land.

Raising questions on the nature and usage of the land, Bansal also pleaded that the land was in fact being used for commercial purposes and not for the purpose of mandirs as, on both the parcels of lands of the suit, which were more than one and a half acres i.e. 6,700 sq. yards, the four Mandirs are in a very small portion and the remaining portion consisted of a residence, shops and factories.

On the aspect of the DDA having taken over the land on 'as is where is' basis, Bansal submitted that this only meant that the Government of India was not giving any guarantees or warrantees in respect of the land. The transfer of property to the Municipal Corporation of Delhi/North Delhi Municipal Corporation was for the purposes of providing municipal amenities and facilities in the area concerned. He argued further, that Khasra Girdhawaris and other revenue records do not confer any title.

Ruling in favour of DDA, the court imposed costs of Rs. 1 lakh on the manager, giving strict observations regarding encroachment of public properties in the garb of places of worship.