Savyasachi K. Sahai vs.union of India & Ors - Court Judgment

Excerpt:
$~ *in the high court of delhi at new delhi + review petition no.242/217 and cm no.21184/2017 in wp(c)no.7955/2015 % savyasachi k. sahai through: reserved on:30. h may, 2017 date of decision :5. h june, 2017 ........ petitioner... petitioner in person. versus union of india & ors ..... respondent through: mr. u. hazarika, sr. adv. with mr. syed hasan isfahani, mr. jayant mohan, mr. aamir khan, advs. for the review petitioners/impleaders in mr. vikram jetley, cgsc for r-1 & 4 mr. rajeev kr. yadav, adv. for intervenor/applicant cm no.18177/2016 mr. wajeeh shafiq, sc for delhi waqf board with mohd. qaseem and mr. dhairaj kapoor, advs. mr. jayant tripathi and mr. dinesh dahiya, advs.for r-4/dg asi mr. sanjeev sabharwal, sc for dda mr. satyakam, asc for gnctd with mr. pankaj sharma, adv. for r-5 & 6 and insp. jarnail singh, sho ps nizamuddin ms. diksha lal for mr. ajjay aroraa, adv. for sdmc mr. mohit chugh for mr. sanjeev ralli, adv. for dpcc rev.p. no.242/2017 in w.p.(c)no.7955/2015 page 1 of 75 coram: hon'ble the acting chief justice hon'ble mr. justice c. hari shankar judgment gita mittal, acting chief justice1 this review petition no.242/2017 has been filed by four applicants, namely, mohd. shakeel, mohd. allauddin and mohd. mehmood (claiming to be the three sons of late mohd. yusuf and late mohammed yunus) and mohd. nasir (son of mohd. hakmuddin) seeking review of our order dated 16th may, 2017. the review petitioners have, in the review petition, claimed that the same relates to a land which is the subject matter of the writ petition. for the purpose of expediency, we reproduce hereunder our order dated 16th may, 20 “1. notice.2. mr. rajeev kr. yadav, learned counsel for the petitioner; mr. sanjeev sabharwal, standing counsel for the dda; mr. vikram jetly, central government standing counsel and mr. satyakam, additional standing counsel for the gnctd accept notice. it is submitted by mr. sanjeev sabharwal, learned 3. standing counsel for the dda that out of the total tikona park which as per the petitioner is 12.08 acres, a very small portion of the property is old construction and that the same is not the subject matter of demolition. there is unauthorised construction which has been raised after 2015.4. neither any site plan is placed with the application nor rev.p. no.242/2017 in w.p.(c)no.7955/2015 page 2 of 75 there is any documents to establish title.5. mr. rajeev kumar, learned counsel for the petitioner has drawn our attention to an order dated 12th january, 2011 passed in w.p.(c) no.3927/2010 wherein this court has noted earlier decision passed in w.p.(c) no.1512/1984 and directions were issued to the union of india for taking appropriate steps for removal of unauthorised encroachment and unauthorised construction as they had taken place in violation of the orders passed in 1984. 2011, the court had also observed that : it is pointed out that by the order dated 12th january, “.... needless to say, when we have said unauthroised construction and encroachments ought to be removed, it is obligatory on the part of the union of india that no person makes any kind of unauthorised construction or encroachment. it needs no special emphasis to state that if the petitioner is aggrieved by an action of the union of india, it can approach the appropriate legal forum as advised in law.3. in view of the aforesaid, we direct the union of india to proceed against the persons, who have unauthorisedly constructed and encroached on the land in question, in accordance with law.” (emphasis by us) 6. the petitioner as well as ld. counsel for the other parties contend that the properties of these applicants have come up on this spot after the passing of the above orders.7. we find that there is nothing to support that the construction which is reflected in the photographs by the applicants is old. on the contrary, the photographs show brand new constructions which are freshly painted. none of the photographs show any old construction. rev.p. no.242/2017 in w.p.(c)no.7955/2015 page 3 of 75 8. we may mention that even the photographs placed with the application prima facie do not show the correct or the complete position. they certainly do not support the submissions made in the applications.9. in para 3 of cm no.18595/2017, a bald assertion of “since their ancestors” and “in a portion of the park” is made without any specifications. the applications mention not a single date of construction or occupancy. no details of occupation are mentioned. not a whit of right or title or interest of the applicant in the subject property is mentioned. there is no document to support even the occupancy.10. the respondents shall strictly ensure that no old construction is demolished.11. let a status report in this regard be placed before us tomorrow i.e. on 17th may, 2017.12. list on 17th may, 2017. dasti under the signatures of court master.” grave urgency was expressed by the review petitioners. it is 2. submitted by mr. u. hazarika, ld. senior counsel for the review petitioners that all the relevant records have been placed along with the review petition. additionally, along with the review petition, documents running into 206 pages were also placed before us. the same were taken on record.3. consequently, we have heard at great length mr. u. hazarika, ld. senior counsel for the review petitioners as well as all other counsels in this review petition. rev.p. no.242/2017 in w.p.(c)no.7955/2015 page 4 of 75 description of the subject land and nature of old structures theren 4. the instant case is concerned with a triangular piece of land bounded by major roads on all three sides. on the southern side, it is bounded by the lodhi road; on the western side by mathura road and on its eastern side by the lala lajpat rai marg (earlier known as the link road).5. along with the review petition, the applicants have placed a copy of a notification dated 27th november, 1970 which has been issued by the delhi administration in exercise of powers conferred by sub-section (1) of section 12 of the delhi development authority act, 1957 read with the notification dated 14th february, 1969 issued by the government of india. this notification petition restored an earlier notification dated 10th february, 1970 (not placed on record).6. in para 2.2 of the review petition, the applicants explain that this notification notified the waqf properties giving their descriptions. unfortunately, the complete notification dated 31st december, 1970 has also not been placed before us. an incomplete list of some enclosures have been filed. we extract hereunder the extract of the notification dated 31st december, 1970 which is relied upon by the review petitioner : rev.p. no.242/2017 in w.p.(c)no.7955/2015 page 5 of 75 (1) (2) s.no name of wakf & wakif, if known (3) date or year of creation of wakf (4) nature of object of wakf ward - i (5) detail of wakf deed if any, with ref. to registration records (6) (7) (8) name and address of mutawalli wakf gazette notification dated/remarks description of wakf property. (a) immovable its location, nature, tenure, plot or mpl.no.(b) moveable, its nature & investment, (area sq.yds.) xxx xxx xxx 1078. muslim over 100 years. burial of dead delhi wakf board (31-12-1970 page no.1354/231) graveyard, opposite oberoi inter continental hotel, mathura road, nizamuddin, new delhi. graveyard in triangular shape bounded by mathura road, lodhi road & link road (area 12.8 area minus area of okhla canal) containing dargah shah firdaus and dargah musafir shah with a wall mosque. over 200 acc. graves outside site.7. it appears that there were disputes regarding government of india acquiring several waqf properties between the year 1911 and 1915 for the extension of the delhi city. there was a lot of resentment to this acquisition. the waqf act, 1954 came to be promulgated when several such properties being of religious character were notified as “waqfs” in the delhi gazette dated 16th april, 1970 and 31st december, 1970. against these notifications, the union of rev.p. no.242/2017 in w.p.(c)no.7955/2015 page 6 of 75 india had filed declaratory suits claiming ownership of these waqf lands. in order to resolve the disputes, in the year 1974, a committee was formed under the chairmanship of shri s.m.m. burney, i.e., the burney committee, which had given its recommendations dated 23rd march 1996 detailing 204 waqf properties. inter alia it was mentioned therein as follows : its claim to their ownership. in accordance with list of such wakf properties is attached as annexure “(a) mosques and dargahs : i) the wakf properties which are in existence on the site and are in regular use shall be transferred to the delhi wakf board/mutawallies and the government will the wakf withdraw board/mutawallies will be empowered to develop these properties the master plan and municipal bye-laws. “a”. ii) the wakf which are non-existence on site and where the government has constructed buildings, parks, etc. shall be handed over to the government. the delhi wakf board shall withdraw its claim to these properties. iii) the wakf which are in dilapidated condition but capable of use, shall be handed over to the delhi wakf board. the government shall withdraw its claim to the ownership of such properties. the delhi wakf board shall also be permitted to develop them in accordance with the master plan and municipal bye-laws. the delhi wakf board shall develop these wakfs in a befitting manner keeping in view the architecture of the surrounding area in list of such properties is attached as annexure “b”. rev.p. no.242/2017 in w.p.(c)no.7955/2015 page 7 of 75 list of such wakfs is attached as annexure “d”. which the wakfs are located. the delhi gazette notification of such properties shall stand and the government will withdraw cases from the courts against their notification. iv) the wakf which are in a dilapidated condition and not capable of use shall not be handed over to the delhi wakf board. the delhi wakf board have no claim to these properties and agreement, if any, in respect of such wakfs shall be terminated. (b) graveyards : i) the graveyards where graves are in existence and which have been gazette as such, the government will surrender its claim to these properties and also withdraw their case from the courts. the board shall be allowed to maintain and develop them where possible according to the master plan and municipal bye-laws. the right of ownership, maintenance and development shall vest in the delhi wakf board and the agreement, if any, in respect of such graveyards will be terminated. the graveyards where graves are not in existence ii) and which have been developed into parks or on which buildings have been constructed by the government or corporation authorities, the delhi wakf board shall be compensated for the same and the wakf board thereupon shall withdraw its claim to such graveyards in favour of the government/municipal corporation. list of such graveyards is attached as annexure “e”. list of such wakf is attached as annexure “c”. list of such graveyards is attached as annexure “f”. (emphasis by us) rev.p. no.242/2017 in w.p.(c)no.7955/2015 page 8 of 75 8. the review petitioner has placed before us an extract of the lists allegedly enclosed with the burney report, relevant portion whereof reads thus : “wakf properties under dispute with l&do xxx xxx xxx 96. muslim graveyard opposite oberoi hotel graveyard is in triangle shape bounded by mathura road, lodhi road and link road new delhi” “annexure e to the report of the survey committee : land & development office : xxx xxx xxx 14. muslim graveyard opposite oberoi hotel in triangle shape bounded by mathura road, lodhi road and link road new delhi” it is noteworthy thus that the burney committee report which is 9. dated 23rd march, 1976 makes no reference to any construction of a mosque or dargahs on the subject land and only refers to a muslim graveyard.10. the review petitioner has thereafter placed on record a copy of a certificate of a registration effected by the delhi waqf board of the rev.p. no.242/2017 in w.p.(c)no.7955/2015 page 9 of 75 review petition registering and certifying under section 125 of the waqf act, 1954 the following waqf properties in the name of delhi waqf board of the review petition : delhi waqf board darya ganj, delhi certificate of registration xxx xxx certificate given to delhi wakf board, darya ganj, new delhi xxx name of waqf . muslim qabrustan (triangular), dargah shah firdaus, dargah musafir shah with a wall type mosque. graveyard in triangular shape bounded by mathura situated in road, lodhi road and link road (area 12.8 acrs) minus area of okhla canal) containing dargah shah firdaus and dargah musafir shah with a wall type mosque over 200 ... graves exists at site name of waqif .................... entered at register no.v, page 107, entry no.106, given under my hand, this 1st day of march, 1979” (emphasis supplied) 1.2. 3.4.11. the ministry of works and housing of the government of india implemented the recommendations of the burney committee and transferred certain properties under the control of the l&do/dda claimed as waqfs to the delhi waqf board. again, a rev.p. no.242/2017 in w.p.(c)no.7955/2015 page 10 of 75 completely incomplete list has been placed before us. the review petitioner does not point out with any clarity as to where the subject property under dispute in the present petition features in these lists.12. it is important to note that these notifications do not either recognize or refer to or record the names of any private persons as any “mutawalli” with record to the properties mentioned therein.13. no other notification is placed before us which could create any right, title or interest in any portion of the triangular park in favour of the review petitioners.14. it appears that a challenge was laid to the transfer of the properties to the waqf board by the union of india, by way of w.p.(c)no.1512/1984, indraprastha vishwa hindu parishad v. union of india. in this writ petition, an order dated 1st of june 1984 was passed stating that status quo regarding the properties should be maintained and possession should be retained by the government. it was further directed that if lease deeds have not been executed, these should not be executed. copy of this order has been placed before us along with cm no.18177/2016 whereby the jamia arabia nizamia welfare education society has sought impleadment.15. on the 5th of march 2014, the government of india issued a notification under section 93 of the right to fair compensation and transparency in land acquisition, rehabilitation and resettlement act, 2013 (30 of 2013) withdrawing from acquisition 123 waqf properties, which had been under the control of the land and rev.p. no.242/2017 in w.p.(c)no.7955/2015 page 11 of 75 development office. we are unable to discern herein any reference to the property which is the subject matter of the writ petition. however, in the list of the properties under the caption “properties of land and development office”, sr.nos.40 and 41 read as follows : “ properties of land and development office xxx xxx xxx 40.41. 13/2, muslim graveyard, village aliganj, opposite southern gate of dargah nizamuddin aulia alongside lodhi road. 19/2, muslim graveyard, village aliganj alongwith link road.” there is no clarity as to which graveyard is referred to above. orders in litigation regarding the amir khusro park which have to be complied with 16. it appears that the delhi waqf board had filed suit no.4/1980, delhi wakf board v. mohd. yusuf and mohd. yunus and 11 others seeking possession, rendition of accounts and perpetual injunction restraining the defendants to put up hoardings or allow any person holding in any portion of the portion a, b and c and that the land a, b and c as shown in the land, measuring about 60 bighas, which was a graveyard, comprising of two khanka, a mosque and a grave used for burial place for muslim dead bodies since time immemorial. the delhi waqf board was relying upon the provisions of section 14 of rev.p. no.242/2017 in w.p.(c)no.7955/2015 page 12 of 75 the waqf act, 1954.17. ld. counsels for the parties have placed the orders in previous litigations before us which we refer hereunder : (i) orders dated 1st june, 1984 in wp(c)no.1512/1984, indraprastha vishwa hindu perishad & ors. v. uoi & ors. made absolute on 7th january, 1985. (ii) order dated 12th january, 2011 in wp(c)no.1512/1984, indraprastha vishwa hindu perishad & ors. v. uoi & ors. (iii) order dated 12th january, 2011 in w.p.(c)no.3927/2010, jamia arabia nizamia welfare educational society vs. delhi wakf board & ors. (iv) order dated 19th october, 2015 in wp(c)no.7955/2015, savyasachi k sahai vs. uoi & ors. (v) order dated 24th february, 2016 in wp(c)no.7955/2015, savyasachi k sahai vs. uoi & ors.18. despite and after the orders of status quo in w.p.(c)no.1512/1984, encroachments took place in the amir khusro park/tikona graveyard.19. we extract hereunder the orders passed by this court regarding the unfortunate happenings on this valuable property : (i) orders in w.p.(c)no.1512/1984, indraprastha vishwa hindu perishad & ors. v. uoi & ors. : (a) order dated 26th august, 2010 (bench comprising chief rev.p. no.242/2017 in w.p.(c)no.7955/2015 page 13 of 75 justice and manmohan, jj.): “mr. parag p. thripati, learned additional solicitor general has submitted that the union of india is likely to take a policy decision within a period of four weeks. it is submitted by him that if a policy decision comes then there would be a possibility that the controversy may be put to rest. be that as it may, if a policy comes into existence, there can be debate in that regard on the next date of hearing. list on 6th october, 2010.” (b) order dated 6th october, 2010 (bench comprising chief justice and manmohan, jj.) : “it is submitted by learned asg that parties concerned are looking into the matter. in view of the aforesaid, as prayed, matter be listed on 19.1.2011. counsel for the petitioner has no objection.” (c) order dated 12th january, 2011 (bench comprising chief justice and sanjiv khanna, jj.): “6. on perusal of the orders passed and the stand taken, we are of the considered opinion that the union of india is required to consider the matter. let the union of india re- look at the matter and take a decision within six months form today. till then, the interim order passed by this court on 1st june, 1984 shall remain in force. needless to say when we have directed that the union of india shall have a fresh look into the matter, it shall keep in view the law in praesenti and the factual position. all other issues and contentions are left open. rev.p. no.242/2017 in w.p.(c)no.7955/2015 page 14 of 75 with the aforesaid direction, the writ petition stands disposed of.” (ii) order dated 5th september, 2011 on cm no.13013/2011 in w.p.(c)no.1512/1984, indraprastha vishwa hindu perishad & ors. v. uoi & ors. (bench comprising chief justice and sanjiv khanna, jj.) : “cm no.13012/2011 this is an application for extension of time by the union of india. regard being had to the assertions made in the application, time is extended till end of october, 2011. after the order is complied, a copy of the order shall be supplied the petitioner. it is hereby made clear that no further extension shall be granted. the application is, accordingly, disposed of.” learned counsel for to the (iii) order dated 9th september, 2015 in cont.cas.no.519/2012, jamia arabia nizamia welfare v. tr prasad & ors. (bench comprising manmohan, j.): “ms. monika arora, learned standing counsel for respondent nos. 1 to 3 is permitted to file an additional affidavit within two weeks. list on 15th january, 2016. in the meantime, the deputy l&do shall ensure that no further unauthorised construction and/or illegal rev.p. no.242/2017 in w.p.(c)no.7955/2015 page 15 of 75 encroachment takes place in the area in question. to ensure the aforesaid, whatever measures have to be taken by the deputy l&do shall be put in place forthwith.” (iv) order dated 26th february, 2007 in w.p.(c)no.1451/2007, jamia arabia nizamia welfare education v. delhi wakf board & anr. (bench comprising badar durrez ahmed, j.) : “in the present petition, the grievance is with regard to an old monument which is supposed to be over 500 years old. the photograph of the same is placed at page 9 of the paper book. the said monument is adjacent to delhi public school, mathura road, new delhi and is situated at khasra no.484. the petitioner claims itself to be a registered society looking after the affairs of the masjid and madarsa which is located in the same khasra. this claim of the petitioner is disputed by mr. waziri, who appears on behalf of the wakf board. it is made clear that the order that is being passed in this matter does not in any way recognise the status of the petitioner as a society lawfully entrusted with the management of the mosque or the madarsa. however, directions are being passed because the property in question is admittedly wakf property over which the wakf board exercises superintendence and mr. waziri, who appears for the wakf board has assured this court that if there are any encroachments and unauthorized occupants in the said premises then the wakf board shall take appropriate action in terms of the provisions of the wakf act, 1995 for removing any such encroachment/unauthorised occupants. in view of this statement made by mr. waziri, no further direction is necessary in this petition. the writ petition stands disposed of.” rev.p. no.242/2017 in w.p.(c)no.7955/2015 page 16 of 75 20. regarding these encroachments, this court in wp(c)no.3927/2010 jamia arabia nizamia welfare educational society vs. delhi wakf board, speaking through a bench of the chief justice and sanjiv khanna, jj., on the 12th of january 2011, specifically directed as follows : for removal steps appropriate “2. we have been apprised by mr. rakesh tiku, learned senior counsel for the petitioner that the encroachment should be removed. in view of the decision pronounced in writ petition (civil) no.1512/1984, the union of india shall take of unauthorized encroachment and unauthorized construction as the same taken place in violation of the order passed by this court in the year 1984. needless to say, when we have said unauthorized construction or encroachment ought to be removed it is obligatory on the part of the union of india that no person makes any kind of unauthorized construction or encroachment. it needs no special emphasis to state that if the petitioner is aggrieved by an action of the union of india, it can approach the appropriate legal forum as advised in law. in view of the aforesaid, we direct the union of india 3. to proceed against the persons, who have unauthorisedly constructed and encroached on the land in question, in accordance with law.” (emphasis supplied) 21. thereafter, the present writ petition (w.p.(c)no.7955/2015) was filed by the writ petitioner seeking a mandamus to the respondent rev.p. no.242/2017 in w.p.(c)no.7955/2015 page 17 of 75 nos.2 to 4 to take appropriate steps and action against the illegal encroachments and unauthorised constructions inside and around amir khusro park.22. on the 19th of october 2015, this court noted the status report filed by the respondent no.6 sho nizamuddin police station for assistance in removing the encroachments in the amir khusro park. we extract hereunder paras 5 to 8 of the order dated 19th october, 2015 which read as follows : “5. respondent no.2/ dda in its status report has pointed out that the plot in question measuring 12.8 acres was allotted by l&do department on 05.01.1972 for the purpose of developing and maintaining the same as green land. since then, as per terms of allotment, the horticulture division of respondent no.2/dda is maintaining the same. status report admits that the same has been illegally encroached upon in the shape of several jhuggi jhopries which are illegally constructed in the park. garbage and malba is also dumped inside the park. it is further stated that the condition of the park has deteriorated and any attempt to carry out the work of cleaning is objected to by the local residents illegally residing in the park who create hindrance in execution of the cleaning work. it is urged that letters were sent to the concerned police station to take action against the illegal encroachers on the government land, but no steps have been taken by the police and no police protection is being provided.6. the two status reports make it clear that the two authorities are passing the blame on each other. a serious problem of unauthorised and illegal encroachments on govt. land exists. there is apprehension of law and order problem. rev.p. no.242/2017 in w.p.(c)no.7955/2015 page 18 of 75 7. in the light of the above, it is necessary for the respondents to take immediate action for removing encroachments and illegal construction inside the park.8. we therefore, issue the following directions: i) the concerned chief engineer (or equivalent officer) of dda in consultation with the concerned police dcp of the area, shall fix an appropriate date for removing of all unauthorised encroachments and illegal constructions inside the park. the needful will be done within three months from today. ii) the police will provide all necessary protection for carrying the task by respondent no.2/dda. iii) after necessary task is accomplished, respondent no.2/dda shall carry out appropriate measures to ensure that the unauthorised construction and land grabbing in any form is not repeated again. if necessary, appropriate wall or fencing shall be constructed/installed to protect the land. iv) there is a specific reference in the status report of the police to a rain basera stated to have been constructed by shakti shalini ngo. the exact status of this rain basera is not stated in the status report, i.e. as to whether it is set up with the prior permission of the concerned authority or not. if the same has a valid subsisting permission from the concerned authority, then only it will not be subjected to any coercive step as envisaged in the order as above.” (emphasis by us) 23. our attention has been again drawn to the order dated 24th rev.p. no.242/2017 in w.p.(c)no.7955/2015 page 19 of 75 february, 2016 in the present writ petition wherein the court noted that the above directions made on 19th october, 2015 have not been complied with. we extract hereunder paras 3 to 6 of the order passed by this court (chief justice and jayant nath, jj.) on the 24th of february 2016 which read thus : “3. mr.sanjeev sabharwal, the learned standing counsel appearing for the dda states that the needful could not be done inadvertently and the needful will be done within four weeks.4. the delhi police had filed a status report. in the status report, it is stated that a copy of the communication which is addressed the joint commissioner of police dated 26.10.2015 has also been sent to dda. however, it is urged that the dda has taken no steps to seek police protection for appropriate action in the matter. relevant portion of the communication written to the dda reads as follows: to “in this connection, it is submitted that large chunk of land is lying vacant opposite basti hazrat niazamuddin at lala lajpat rai marg, which is popularly known as amir khusro park, hazrat nizamuddin, new delhi. since, the said land is lying vacant, vagabonds staying in the area used to put jhuggies on the said area. round the clock, staff has been deployed in amir khusro park. however, these vagabonds used to encroach space by first putting tarpaulin and then putting bamboo sticks at odd hours to be used for stay and starts living therein. time to time efforts were made to remove the encroachments at our own, but due to strong protest of residents, no fruitful result came out as they put forward their females and also throw children in front of the police party. rev.p. no.242/2017 in w.p.(c)no.7955/2015 page 20 of 75 it has also come to the notice that one baba firozuddin, who is running a grocery shop in the said area is doing encroachment in a well planned manner through his family members and collecting money from outsiders for providing them space for putting jhuggies on the said land. to put pressure on local police, recently baba firozuddin also filed a writ petition against the sho/h.n. din with the allegations that sho/h.n. din is forcibly removing the jhuggies. however, the same was dismissed by the hon’ble delhi high court. …… the there is strong apprehension that there can be a major law and order problem in future at the time of removal of these jhuggi residents as some anti social elements have also started to live there, who used to do various crimes like robbery, snatching, burglary etc. localities. recently, clashes also took place between different groups for construction of jhuggies and cross cases were also registered. the several intimations have been sent to dda authority at police station level to protect the area by way of putting wall or deployment of guards to keep a check on unauthorised encroachment. this office has also written to the deputy director (lm), dda, vikas sadan, new delhi vide this office memo/letter no.10997/hax(ac-iii)/sed, dated 17.04.2015 (annexure-a).” in nearly the above report shows the urgent need to take steps as directed by this court on 19.10.2015.5. we are not satisfied with the explanation given by the dda the order dated 19.10.2015. however, in the interest of justice, as requested by the learned counsel appearing for the dda, we grant its non-compliance with for rev.p. no.242/2017 in w.p.(c)no.7955/2015 page 21 of 75 another one month period to dda to comply with the previous order of this court dated 19.10.2015.6. call on 30.03.2016. the concerned chief engineer, dda and the concerned deputy commissioner of police shall remain present in person in court on that date.” (emphasis supplied) it is noteworthy that the review petitioner has made no 24. grievance with regard to the above order dated 12th january, 2011 in w.p.(c)no.3927/2010; orders dated 19th october, 2015 and 24th february, 2016 passed in the present writ petition. despite knowledge of the orders of the courts and action of the police and dda as noted above, the writ petitioners have admittedly contumaciously flouted the same.25. the writ petition thereafter was listed on 19th april 2017 when the non-compliance with the previous orders was noted and it was directed as follows : “2. …we are informed by mr. sanjeev sabharwal, learned standing counsel for the dda that despite best efforts, police assistance has not been made available. this is disputed by mr. satyakam, learned additional standing counsel for the police. despite the divergence on this aspect, both learned standing counsels submit that the orders of this court have to be strictly complied with.3. it cannot be denied that encroachment and trespass cannot be permitted, least of all permitted to continue in perpetuity. the aspect of non-compliance of the specific rev.p. no.242/2017 in w.p.(c)no.7955/2015 page 22 of 75 directions of this court is an even more serious matter and is liable to render the concerned officers to appropriate action under the contempt of courts act, 1971.4. on request of the learned standing counsels for the delhi development authority and the delhi police, they are permitted time of three weeks to comply with the directions made on 19th october, 2015. a report to this effect shall be filed before this court on 22nd may, 2017.” (emphasis supplied) 26. it is noteworthy that on the 28th of march, 2017, the review petitioner filed cm no.13164/2017 inter alia seeking directions against the respondents to take appropriate steps against the demolition of the boundary wall which had been constructed by the respondents to avoid further illegal encroachments and unauthorized constructions in the park and a further direction to the respondents to cover the entire boundary wall by putting iron fence on the boundary wall to control illegal encroachment. notice was issued on this application as well on 19th april, 2017.27. it was at this stage, that the review petitioners filed cm no.18595/2017 seeking impleadment under order i rule 10 of the cpc accompanied by cm no.18596/2017 seeking a direction to the respondents to defer the demolition till the next date of hearing. this application was premised on the plea that the applicants and their family were residing in the bounded area of the masjid and the dargah.28. on 16th may, 2017, we had noted the submission of the rev.p. no.242/2017 in w.p.(c)no.7955/2015 page 23 of 75 standing counsel for the delhi development authority that out of the total tikona park, which as per the petitioner was measuring 12.08 acres, a small portion of the property is old construction and that the same is “not the subject matter of demolition”. we also noted that there was unauthorised construction which had been raised after 2015. the order dated 12th january, 2011 passed in w.p.(c)no.3927/2010 as well as the earlier decision in w.p.(c)no.1512/1984 were placed before us and were noted by us.29. upon the examination of the photographs, we found that the photographs relied upon by the review petitioners were showing brand new constructions which had been freshly painted and newly tiled which were not old constructions. on 16th may, 2017, it was also noted that the photographs placed with the application did not show the correct or the complete position. we had noted the position placed by the applicant in cm no.18595/2017 which was in the following terms : “9. in para 3 of cm no.18595/2017, a bald assertion of “since their ancestors” and “in a portion of the park” is made without any specifications. the applications mention not a single date of construction or occupancy. no details of occupation are mentioned. not a whit of right or title or interest of the applicant in the subject property is mentioned. there is no document to support even the occupancy.” 30. the photographs actually show that completely unauthorized and illegal structures have come up even on the pavements alongside rev.p. no.242/2017 in w.p.(c)no.7955/2015 page 24 of 75 the main road which are obstructing the right of way and cannot be permitted.31. along with the review petition, a site plan has been placed on record showing the old structures. in the site plan, certain structures are shown encircled in red which have been clearly referred to as disputed structures. the notification of 1970 or thereafter make no mention of such structures. therefore, these structures cannot be maintained.32. conscious of the need to ensure that the old constructions, which were the subject matter of the notifications of the government of india, had to be protected, in paras 10 and 11 of the order dated 16th may, 2017, we had directed as follows : “10. the respondents shall strictly ensure that no old construction is demolished.11. let a status report in this regard be placed before us tomorrow i.e. on 17th may, 2017.” 33. on the 17th of may 2017, we were informed by the counsels for the official respondents as follows : “mr.sanjiv sabharwal, learned counsel for the dda submits on instructions from mr.sunder lal, deputy director (south east) of land management, dda that demolition action is being carried out on the site. he states that gross illegal activities viz. workshop of airconditioner/car repair, parking of e-rikshaws’, against payment and even real estate transactions were being undertaken on the government land. rev.p. no.242/2017 in w.p.(c)no.7955/2015 page 25 of 75 mr.avinash, learned counsel appearing the applicants submits that the applicants may be permitted to remove their belongings from the spot in question. the concerned authorities, the applicants to remove their belongings which shall be positively be removed within two days from today. if approached, shall permit for it is made clear that we have not granted any stay of the demolition action. status report be filed before the next date of hearing. list on 22nd may, 2017. dasti to parties.” 34. thereafter, a newspaper report which appeared at page 7 of the saturday’s edition of times of india dated 20th may, 2017 was brought to our notice which compelled this court to call upon the matter for urgent listing on the same day i.e. saturday the 20th of may 2017 when this court recorded the following order : “ 1. the newspaper report captioned as “home razed, they are back on streets” at page 7 of today’s edition the times of india was brought to our notice compelling us to make a direction for urgent listing of this matter today.2. the newspaper report suggests that pursuant to court order, demolition has been effected of a night shelter in nizamuddin causing displacement of 100 people and rendering them shelter less.3. while hearing wp(c)no.4417/2017, sunil kumar aledia vs. government of nct of delhi filed by certain persons rev.p. no.242/2017 in w.p.(c)no.7955/2015 page 26 of 75 for claiming to have been occupying a night shelter in amir khusro park, we had noted the submissions made by mr. satyakam, additional standing counsel of the gnctd, mr. parvinder chauhan, standing counsel for dusib and mr. sanjeev sabharwal, standing counsel the delhi development authority to the effect that there were three night shelters in close proximity of the amir khusro park, delhi and that the persons who were using the night shelter in the amir khusro park, delhi were being accommodated in a nearby night shelter.4. we are further informed by mr. satyakam, additional standing counsel for gnctd that this amir khusro park night shelter was being used as night shelter only by few women and their children, who desired to be placed close to the amir khusro park area.5. mr. parvinder chauhan, standing counsel for dusib confirms this position and informs us that the children were going to schools in the neightbourhood area, for this reason, the women and children who were using the amir khusro park shelter have been accommodated in the night shelter which is near the hazrat nizamuddin auliya dargah which had extra space still available.6. a very unfortunate part of the newspaper report is pointed out by ld. standing counsels as projected in the newspaper. the report includes a picture of a man and an infant child sleeping in the open. this picture does not relate to inmates of the night shelter for the obvious reason that the night shelter in question was being used for women and children. it is pointed out that therefore, the picture of sleeping man is deliberate act to mislead the public and create a wrong impression against the court and the statutory authorities. rev.p. no.242/2017 in w.p.(c)no.7955/2015 page 27 of 75 7. the government of nct of delhi shall inform this court also as to why steps are not being taken to ensure that adequate shelters are provided to all the homeless in delhi and how green belts can be converted into shelter homes in violation of the law.8. we may note that inspector jarnail singh, sho hazrat nizamuddin; mr. arun kumar singh, deputy director dusib and assistant director shyam bijay (horticulture) of the dda are present today before us.9. in order to confirm that adequate shelter has been made available to the erstwhile occupants of the demolished amir khusro park night shelter from the demolished shelter home, we appoint mr. lorren bamniyal, registrar (appellate) as amicus curiae to conduct a spot inspection today itself and submit a report to this court.10. the local commissioner shall be accompanied by counsel for the parties. the local commissioner shall visit the spot today itself and submit report to this court.11. inspector jarnail singh, sho ps hazrat nizamuddin shall ensure adequate security to the local commissioner and the team of lawyers.12. let photographs of the shelter home where the occupants have been accommodated and facilities made available be taken by the local commissioner and placed before us. the respondents shall make available the photographer and bear its expenses.13. mr. satyakam informs us that the supreme court was approached by a party regarding some other constructions in the amir khusro park who has been given liberty to seek rev.p. no.242/2017 in w.p.(c)no.7955/2015 page 28 of 75 in the order dated 16th may, 2017 review of wp(c)no.7955/2015 from this court.14. we have taken up only the matter of the occupants of the night shelter on account of the urgency noted above in the matter. we are not awaiting the filing of the review petition but have issued the above directions in respect of the occupants of the night shelter. list on 22nd may, 2017. dasti under signature of court master.” 35. on 22nd of may, 2017, orders were passed by us premised on the report of the local commissioner dated 22nd may, 2017, with regard to the rehabilitation of the persons who were occupying the temporary night shelter which had been permitted to come up in the amir khusro park. it has been ensured that all such bona fide occupants stand fully rehabilitated.36. it appears that the review petitioners had in the meantime, assailed our order dated 16th may, 2017 before the supreme court of india by way of a special leave petition diarized vide no.16022/2017 which was withdrawn with liberty to file the present review petition. no such review was filed even till 24th of may 2017 when we had recorded the following : “1. pursuant to the last order, we are informed by mr. ajjay aroraa, for south delhi municipal corporation that a meeting took place between the commissioner, ld. standing counsel rev.p. no.242/2017 in w.p.(c)no.7955/2015 page 29 of 75 sdmc and the ceo of dusib on the 23rd of may 2017 and all efforts are underway so that there is no inconvenience to the persons who stand relocated from the earlier shelter home.2. we are informed that the women and the children are being lodged on the first floor of the night shelter, which has been assigned serial no.10. we are informed that so far as male users of the night shelter are concerned, dusib is raising temporary structures on the terrace and ensuring every facility therein.3. the dusib shall ensure that this is only a temporary measure and that the male occupants are at the earliest suitably accommodated at a night shelter, which is close by.4. inspector jarnail singh, sho, ps hazrat nizamuddin shall assist the other authorities in carrying out these measures.5. we are informed by ld. counsels for the authorities that after our order dated 16th may, 2017, extensive demolition action for removing encroachments in the amir khusro park was effected. our order dated 17th may, 2017 (passed in wp(c)no.7955/2015) notes the information given on behalf of the authorities that demolition was underway. the order dated 17th may, 2017 also records the request as a consequence made on behalf of certain persons for permission to remove their belongings from the spot, which was permitted.6. in wp(c)no.4417/2017 show that rehabilitation of displaced persons which included encroachers has also been closely monitored by this court. in fact suo motu cognizance of a newspaper report was taken and an urgent sitting held on 19th may, dated the orders 2017 rev.p. no.242/2017 in w.p.(c)no.7955/2015 page 30 of 75 saturday the 20th may, 2017. a senior registrar of the court was appointed as local commissioner to ascertain the well being of persons who claimed earlier occupancies. his detailed report is before us. the position disclosed therein is not disputed.7. mr. syed hasan isfahani, ld. counsel for applicant in cm nos.18595-596/2017 in wp(c)no.7955/2015 submits that a special leave petition which was diarized vide d.no.16022/2017 was filed assailing order dated 16th may, 2017 in cm nos.18595-596/2017 in wp(c)no.7955/2015. he submits that the supreme court has directed that status quo shall be maintained for a period of two weeks to enable the petitioner to approach the high court. the said order of the supreme court is extracted hereinbelow : that “mr. siddharth dave, learned counsel appearing for the petitioners submits there are certain structures which are appurtenant to the masjid and dargah musafir shah situated at amir khusro park, lala lajpal rai marg, new delhi in which the mutawalli and his family (petitioners herein) are residing peacefully and managing the dargah for a long time. he also refers to the application(s) for impleadment and directions that he has filed before the high court in which he has asserted this submission. he states that the said point was not considered by the high court. accordingly, learned counsel appearing for the petitioners prays for liberty to withdraw the present special leave petitions and instead move the high court for review of the order. liberty, as prayed, is granted. the petitioners will be at liberty to move this court once again if the order in the review is adverse to them. the special leave petitions are accordingly closed on withdrawal with liberty as aforesaid. we also request the high court to rev.p. no.242/2017 in w.p.(c)no.7955/2015 page 31 of 75 entertain an application for review to be filed by the petitioners. in the meanwhile, status quo, as it exists today, shall be maintained for a period of two weeks to enable the petitioners to approach the high court. above terms.” the special leave petitions are disposed of in the (emphasis supplied) the period of two weeks is expiring on 2nd june, 2017. no application has been filed till date.8. we have queried mr. syed hasan isfahani, ld. counsel for the applicants in cm nos.18595-596/2017, to inform this court with regard to the property which is the subject matter of the special leave petition (diarized vide d.no.16022/2017) before the supreme court of india. however, mr. isfahani is unable to inform this court about the same or the status thereof. despite the liberty granted by the court, no application in this regard has been filed before us till date. no copy of the special leave petition, which was filed in the supreme court of india has been placed before us.9. mr. sanjeev sabharwal, ld. standing counsel for the dda has handed over an information conveyed to an applicant, shri a.k. khan (under the rti act) by the ministry of urban development. the same reads as follow: “a triangular piece of land bounded by lala lajpat rai marg, lodhi road and mathura road was allotted to dda in 1972 as green. hence at present the land is with dda” 10. mr. sanjeev sabharwal, ld. standing counsel for the rev.p. no.242/2017 in w.p.(c)no.7955/2015 page 32 of 75 dda has handed over a file containing the photographs of the demolished properties in the amir khusro park and only a sparkling new structure remains at the spot. this structure is also not residential.11. it is agreed by all the counsels who are present today before us that the law, including the provisions of the dda act; statutory master plan; delhi municipal corporation act as well as the government notifications have to be strictly complied with. the ld. counsel for the applicants has agreed that no new structures can be protected or saved under any statutory provision or notification.12. the amir khusro park is in close proximity to the humayun’s tomb, a unesco heritage site and the hazrat nizamuddin auliya dargah. it is a master plan green meant for use by the residents of the nizamuddin area and the thousands of visitors to the monument and dargah visit the spot.13. it requires to be noted that this small park is a triangular island bounded by busiest traffic roads that is the mathura road, (opposite delhi public school), lodhi road (between golf links and nizamuddin) and the lala lajpat rai (connecting south delhi to india gate). as such no habitation can exist within this park because of the safety concerns and lack of access on account of the unending and constant traffic.14. is being made by unscrupulous elements to encroach on public land and depriving the public and visitors to the hazrat nizamuddin auliya dargah as well as the humayun tomb, the benefit of the park, an oasis in the middle of a brick and concrete jungle which the area has become. that an effort it appears rev.p. no.242/2017 in w.p.(c)no.7955/2015 page 33 of 75 15. our order dated 16th may, 2017 duly notes the nature of encroachments as follows: “9. in para 3 of cm no.18595/2017, a bald assertion of “since their ancestors” and “in a portion of the park” is made without any specifications. the applications mention not a single date of construction or occupancy. no details of occupation are mentioned. not a whit of right or title or interest of the applicant in the subject property is mentioned. there is no document to support even the occupancy.10. the respondents shall strictly ensure that no old construction is demolished.” out in cm16 no provisions of water and electricity connections are pointed nos.18595-596/2017 (wp(c)no.7955/2017) by ld. counsel for the applicants. no document in support of the pleas is enclosed. according to the authorities, the site is a park.17. no sewage facilities have also been pointed out without which habitation would be impossible. it is legally impermissible.18. mr. syed hasan isfahani, ld. counsel for applicants in cm nos.18595-596/2017 in wp(c)no.7955/2017 was also present before us when we listed the matter earlier and is present even today without any instructions.19. it needs no elaboration that the order passed by the supreme court is required to be strictly followed. the above extract would show that new encroachments were not within the purview of the supreme court proceedings. the rev.p. no.242/2017 in w.p.(c)no.7955/2015 page 34 of 75 respondents shall, therefore, ensure that with regard to any old structures, if existing on the spot, which are the subject matter of the order dated 19th may, 2017 passed by the supreme court of india, status quo as obtained, is maintained.20. in view thereof, while taking action as directed, the dda shall strictly abide by the order of the supreme court regarding removal of any remaining new structure in the amir khusro park. the dda shall maintain a videography of the action which is taken.21. no new structure or encroachment shall be permitted to in the amir khusro park, delhi by the respondents.22. inspector jarnail singh, sho, ps hazrat nizamuddin shall render full assistance to the dda in ensuring that the law is complied with.23. the respondents shall ensure that the amir khusro park is further preserved, developed and maintained as a park.” (emphasis by us) the above statements on behalf of the review petitioners completely preclude the stand now pressed in the review.37. other applications being cm nos.20502-03/2017 came up on 25th of may 2017 wherein notice was issued. on this date, we had recorded the following position as subsisting on the spot : rev.p. no.242/2017 in w.p.(c)no.7955/2015 page 35 of 75 “cm nos.20502-20503/2017 xxx xxx xxx 3. it is submitted by mr. sabharwal that he may be permitted to file a status report inasmuch as photographs enclosed with the application do not depict the correct picture and that they relate to new structures which have been the subject matter of the recent demolition action.4. demolition has taken place.5.6. parties within one day. let a copy of this application be furnished to all other this position is not disputed by the applicant that the let a status report be filed by the respondents.38. the present review petition has been filed thereafter and listed before us only on the 30th of may 2017 when notice was issued and accepted by the other side.39. by our order dated 30th may, 2017, the delhi development authority has been directed to remove the malba from the spot : “w.p.(c)7955/2015 xxx xxx xxx 11. in the meantime, keeping in view the ensuing rains and the onslaught of monsoon as well as the diseases which may result if the malba and garbage is left lying on the ground, the dda shall forthwith remove the malba.” (emphasis by us) 40. it is noteworthy that in the meantime, the delhi wakf board has sought impleadment by way of cm no.15772/2016. the delhi wakf rev.p. no.242/2017 in w.p.(c)no.7955/2015 page 36 of 75 board has disputed the entitlement of the review petitioner on the subject land contending that the tikona kabristan (graveyard) stands notified as a wakf property in the notification issued by the delhi administration dated 31st december, 1970 at sr. no.231. this application was allowed by us by the order dated 30th of may 2017. yet another application being cm no.20502/2017 has been filed by shri abdul khalid sultani as a descendent of shafiq mia seeking impleadment and cm no.20503/2017 has been filed for directions in which after issuing notice, time has been given to file replies. these applications were directed to be listed on 24th of july 2017.41. in the aforesaid w.p.(c)no.2901/2014, indraprastha vishwa hindu parishad v. union of india, on 12th january, 2011, after noting that the writ petition would be treated as a representation and the decision taken thereon, after granting opportunity of hearing to all the stakeholders including the delhi waqf board, it was directed that “till such time, status quo obtaining as on today with regard to the possession of the land in question shall be maintained”. the writ petition was disposed of. whether the review petitioners make out that they are “mutawallis” of the property?.42. mr. u. hazarika, ld. senior counsel arguing for the review petitioners has pressed the locus standi of the review petitioners to intervene in the present writ petition premised on their claim of title rev.p. no.242/2017 in w.p.(c)no.7955/2015 page 37 of 75 and entitlement to the land.43. the review petitioners have asserted that their predecessor-in- interest i.e. their father “was appointed as a mutawalli/caretaker of the dargah by the predecessor mutawalli”. let us now examine as to how the review petitioner seeks to establish the claim of the predecessor mutawalli.44. a “mutawalli” is statutorily described under the provisions of section 3(i) of the wakf act, 1995 in the following terms : “3. definitions.—in this act, unless the context otherwise requires,— xxx xxx xxx (i) “mutawalli” means any person appointed, either verbally or under any deed or instrument by which a wakf has been created, or by a competent authority, to be the mutawalli of a wakf and includes any person who is a mutawalli of a wakf by virtue of any custom or who is a naib-mutawalli, khadim, mujawar, sajjadanashin, amin or other person appointed by a mutawalli to perform the duties of a mutawalli and save as otherwise provided in this act, any person, committee or corporation for the time being managing or administering any wakf or wakf property: provided that no member of a committee or corporation shall be deemed to be a mutawalli unless such member is an office bearer of such committee or corporation”. it is therefore, apparent that a mutawalli has to be appointed, 45. “either verbally or in deed or instrument by which a wakf has been created, or by a competent authority” to be a mutawalli of a wakf. it also includes a person who is a mutawalli of a wakf by virtue of any rev.p. no.242/2017 in w.p.(c)no.7955/2015 page 38 of 75 custom.46. by the order dated 6th of october 1981, in suit no.4/1980, the trial court decided an application under order xl of the cpc for appointment of a receiver in suit no.4/1980. it is relevant for our consideration to the extent that it notes the claim set up by mohd. yusuf and mohd. yunus, the predecessors-in-interest of the review petitioners. they even disputed the existence of a graveyard on the subject land.47. the review petitioners have claimed to be the sons and successors of mohd. yusuf and mohd. yunus. these two persons were arrayed as the defendant nos.1 and 2 in suit no.4/1980 filed by the delhi waqf board. the petitioners claim under their fathers and therefore, can claim no better title than was asserted by their claimed predecessors-in-interest. the adjudication on the claimed rights of mohd. yusuf and mohd. yunus with regard to the subject property would bind the review petitioners as well.48. we therefore note the defence set up by mohd. yusuf and mohd. yunus (as defendant nos.1 and 2 in suit no.4/1980) set out in para 3 of the order dated 6th october, 1981 which was to the following effect : “3. defendant nos. 1 and 2 filed reply of the application moved by the plaintiff referred above and alleged that the suit is time barred, that the plaintiff is not in possession of the property; that defendant nos. 1 and 2 have no concern with the alleged hoardings; that the application is mala fide rev.p. no.242/2017 in w.p.(c)no.7955/2015 page 39 of 75 and baseless and, therefore, deserved to be rejected, it is also alleged that it is not disputed that the property in suit is a graveyard. the accuracy of the plan 'a' is denied. it is denied that the property is suit was used a burial place since terms immemorial; that the finding of the wakf commissioner and the gazettee notification dated 21.12.70 in respect of the property in suit are not binding on defendant nos. 1 and 2; and the said notification is void, wrong, unjust, arbitrary and inaffective against the rights, title and interest of defendants no.1 and 2 in the property possessed by them and hence the validity of the said notification is denied; that defendant nos. 1 and 2 have no concern with the hoardings of defendant no.2 and it is denied that the defendant nos. 1 and 2 assisted in any way to defendant no.3 who allowed some people to put up hoardings in the suit property and that defendant nos. 1 and 2 have no concern with the alleged hoardings or its income.” (emphasis supplied) 49. it is therefore, clear that mohd. yusuf and mohd. yunus never set up any plea or claim that they were managers of a mosque or dargahs nor claimed that they were mutawallis in the said property. in fact, mohd. yusuf and mohd. yunus did not even set up any plea that there was any construction in existence on the subject land, as has been claimed by the review petitioners.50. the other document relied upon by the appellant before us is a photocopy of a document scribed in urdu, the year whereof is not legible. this document purports to have been executed by mst. sayeda begum wife of abu-ul-hassan. it claims that “she is the rev.p. no.242/2017 in w.p.(c)no.7955/2015 page 40 of 75 descendent of ali ahmed khwaja abu hasan” who had been offering services at “mazaar sharif like cleaning, dusting up-keeping etc,” and further assisting with arrangements of annual urs. it is claimed that this has been going on from the past many years and he had been cultivating the land from the past 87 years.51. by the said deed of will, mst. sayeda begum bequeathed “all my property in favour of mst. qudarti begum, who will be the sole owner and in possession of all my immovable and movable properties after my death”. this will refers to “land to cultivate”. it is nobody’s case before us that any cultivation is or was going on.52. as per the alleged deed of will, mst. sayeda begum’s predecessor was only offering services in the nature of cleaning, dusting, up-keeping etc. and making arrangements for the annual urs. at mazaar sharif. ali ahmed khwaja abu hasan had no interest, let alone bequeathable right, title or interest in the land or property which is the subject matter of the writ petition. the deed of will wherefrom qudrati begum derives her title, also does not make any reference to her or her predecessor’s appointment as a mutawalli of the two dargahs or mosque and the land in question. we have been kept completely in dark as to how mst. sayeda begum was the “descendant” of ali ahmed khwaja abu hasan or how she inherited his estate. the deed of will does not even disclose the relationship of mst. sayeda begum with the beneficiary mst. qudrati begum. it needs no elaboration that a person can bequeath only what right, title rev.p. no.242/2017 in w.p.(c)no.7955/2015 page 41 of 75 or interest he actually holds. there is not an iota of title of the subject land or the mosque or dargah in favour of mst. sayeda begum. the deed of will relied upon by the appellant is not worth the paper on which it is written.53. before us, mr. u. hazarika, ld. senior counsel for the review petitioners has urged that a general power of attorney dated 20th march, 1981 (registered on 12th october, 1982) was executed by one smt. qudrati begum, widow of master mastoo fida husain aged about 85 years as its executant. by this general power of attorney, smt. qudrati begum appointed her daughter smt. rabia khatoon; sons mohd. yusuf and mohd. yunus as her attorneys. so far as the authorisation was concerned, the executant qudrati begum authorised the said attorneys to inter alia do the following acts in respect of dargah chitli khanka : “general power of attorney xxx xxx xxx ...to do the following acts and things in regard to the dargah popularly known as chitli khangah and in regard to the land and properties attached thereto and for the purposes of the said dargah chitli khangah. and whereas, the executants by virtue of her being the mutwalli/sajjada nashin of the aforesaid dargah and properties attached thereto in terms of the will executed by late saeeda, the mother of the executants herein, hereby invest all her rights, title and interest in the said dargah and in the properties and land attached thereto to the said rev.p. no.242/2017 in w.p.(c)no.7955/2015 page 42 of 75 attorneys to manage the said dargah as before and also manage and properties attached for the purposes of the said dargah in her name and on her behalf. and whereasm i, the and executants authorize the said attorneys jointly and severally to settle lands with the tenants and to grant lease and to collect rent and moneys under the proper receipts and to do all acts and things which are deemed necessary for the up keep and maintenance of the said dargah.” (emphasis supplied) 54. smt. qudrati begum claimed in this attorney that she was the mutwalli/sajjada nashin of the dargah chitli khanka and the properties attached thereto in terms of an alleged will executed by late saeeda, her mother.55. the attorneys were authorised to do all acts and deeds including signing or deeds of lease etc. qua the right, title and interest of the executants in the said property.56. the typed copy of the general power of attorney has been placed before us is executed on a non-judicial stamp paper of the sum of rupees ten only. the same is not even a notarized document, let alone registered in accordance with law, given the powers which were sought to be vested therein. therefore, neither of the two documents, i.e., the aforesaid will and the general power of attorney have any sanctity in law.57. yet another important document has been placed before us rev.p. no.242/2017 in w.p.(c)no.7955/2015 page 43 of 75 which again establishes that the delhi wakf board has been continuously decrying the action of the encroachers on the land. it appears that a notice dated 27th december, 2005 was issued by the chief executive officer of the delhi wakf board referring to misuser of land; induction of encroachers as well as unauthorised construction by shamim begum/qaisar jahan claiming to be both wives of late mohd. yunus. these two ladies had sent a reply dated 3rd january, 2006 to the delhi wakf board which has been placed before us. even in this typed copy of the reply, it is stated as follows :"...by virtue of a general power of attorney dated 20.3.1981 executed by late smt. qudrati begum, mother in law of the undersigned, late mohd. yusuf, the husband of the undersigned had become the mutwalli/sajjadanashin of the aforesaid dargah. it is submitted that after the death of the abovesaid mohd yusuf the undersigned alongwith all other legal heirs including the second wife of the above said mohd. yusuf named smt. qaisar jahan are staying together in the dargah and performing the same duty as my husband was performing i.e. the maintenance of the dargah." (emphasis by us) 58. we have dealt with the general power of attorney dated 20th march, 1981 hereinabove and the legal impact thereof. there is no claim at all that mohd. yusuf was the mutawalli of the dargah. in fact, though the notice has not been placed before us but the tenor of the notice clearly refers to the falsity of the claim of mohd. yusuf and rev.p. no.242/2017 in w.p.(c)no.7955/2015 page 44 of 75 the heirs and his successors after his death.59. the review petitioners have placed before us the notification dated 31st december, 1970 issued by the delhi administration which we have extracted above. the subject property has been described at sr.no.1078 referring to the “dargah shah firdaus, dargah musafir shah with a wall type mosque.” there is no reference at all to any dargah chitli khangah. furthermore, the government notification which is relied upon by the review petitioner describes the delhi wakf board as the mutawalli of the wakf.60. it is evident that neither mohd. yusuf nor mohd. yunus nor the applicants set up any specific plea of appointment of any ancestor as a mutawalli. no plea of customary vesting has been set up anywhere nor particulars thereof have been given. even in the will or general power of attorney, smt. qudrati begum claims to be undertaking merely cleaning, dusting, up-keeping etc. at mazaar sharif and further arrangements for annual urs. and claims to be “cultivating land”. doing sewa or service or charity does not create any right, title or interest in a place of worship or a monument or a permanent structure.61. the intent of the applicants is writ large on the face of the record and the documents placed before us. by virtue of the alleged general power of attorney, the review petitioner fraudulently claimed that their predecessors-in-interest were conferred the power to execute the lease deed, etc. that is to say, were authorized to rent out the property which is the subject matter of the writ petition. the recitals rev.p. no.242/2017 in w.p.(c)no.7955/2015 page 45 of 75 in the alleged general power of attorney and the powers vested therein, in fact manifest a calculated fraud to grab the public land.62. the review petitioners have not pleaded any customary appointment of any ancestor or their predecessor-in-interest as a mutawalli of the wakf. there is not a whisper of a pleading even, let alone deed or instrument, whereby any ancestor or the predecessor-in- interest of the review petitioner’s father was appointed as a mutawalli. clearly, no ancestor or predecessor in interest of the review petitioners was a “mutawali” within the meaning of expression in section 3 of the wakf act, 1954. the review petitioners can also claim no such entitlement or appointment or rights as a result thereof. complaint regarding encroachments on subject property 63. several complaints are on record including complaints by the jamia arbia nizamia welfare educational society dated 27th july, 2015 and 24th august, 2015 regarding encroachments stating that the amir khusro park, containing the dargahs and the wall mosque was previously a graveyard and that it was managed by the delhi wakf board; that the south delhi municipal corporation had constructed a rain basera in the year 2012 for temporary purpose; that under its shield, illegal activities had become rampant in the area and illegal jhuggis and encroachments being constructed.64. in cm no.18177/2016, also a complaint stands made that encroachments and illegal activities have come up over the amir rev.p. no.242/2017 in w.p.(c)no.7955/2015 page 46 of 75 khusro park and a direction was sought to the respondents to take appropriate actions against them. the applicant in the said application also specifically refers to the illegal efforts to convert a 500 year old monument into private residences by the encroachers.65. it is noteworthy that the trial court order dated 6th october, 1981 in suit no.4/1980 also notes that one shafiq mia had brought suit no.45/1971 on 29th october, 1971 to the effect that he was a mutawalli of dargah firdaus ali shah (marked ‘e’) claiming ownership of residential portion (a room) and the open land shown on the plan. by way of this suit, shafiq mia was claiming that the gazette notifications were invalid. so far as shafiq mia is concerned, his suit, based on such claims stands dismissed on 18th november, 1972. the notification dated 10th december, 1970 has become final under the provisions of sections 6 of the wakf act, 1954. removal of encroachments 66. the review petitioners have placed before us a copy of an affidavit dated, 7th october, 2010, filed by the delhi waqf board in another writ petition being w.p.(c)no.3927/2010, jamia arabia nijamia welfare educational society v. delhi wakf board & ors. this affidavit has been sworn by md. ali ashraf, chief executive officer, delhi wakf board. we extract hereunder the relevant portions of this affidavit inasmuch as it sets out the stand of the wakf board and the directions regarding removal of encroachments in paras rev.p. no.242/2017 in w.p.(c)no.7955/2015 page 47 of 75 6 and 8 : “6. that the delhi wakf board initiated steps for removal of encroachments in accordance with section 54 of wakf act, 1995. as a result of which a contempt petition no.5was filed, wherein order dated 1.9.08 was passed by hon’ble mr. justice s.n. dhingra, directing the delhi wakf board that within 60 days of proceedings qua eviction in respect of delhi wakf board shall be completed and necessary orders shall be passed which shall further be sent to the sdm. xxx xxx xxx 8. that delhi wakf board is bound by the directions issued by this hon’ble court delhi wakf board is custodian of wakf properties and duty bound to remove encroachment from such wakf properties. in view of the aforesaid, it is prayed that the respondent will comply directions issued by this hon’ble court, in view of the disposal of the aforesaid writ petition.” (emphasis by us) 67. cm no.18177/2016 has been filed by jamia arbia nizamia welfare educational society for impleadment before us. alongwith the application, the said applicant has placed a response dated 2nd september, 2015, issued by the delhi wakf board to it, stating that the managing committee duly constituted by the delhi wakf board is managing the affairs of the graveyard “tikona kabristan”. rev.p. no.242/2017 in w.p.(c)no.7955/2015 page 48 of 75 do the review petitioners establish that they are actually occupying the land?. do the review petitioners make out a legal right to continue to remain in possession?. if so, can mere occupancy of another’s property be legally protected?.68. in support of the occupancy of the dargah chitli khangah, the review petitioners rely on a death certificate of mohd. yusuf dated 19th may, 2003; a receipt dated 25th march, 2003 of installation of an electricity connection and election cards.69. reliance is placed on aadhar card and election commission card dated 15th december, 1995; ration card and passports.70. these documents would not establish right, title or interest in immovable property. they do not establish a legal right with regard to the subject property.71. we are compelled to observe that even it could be held that the documents in the nature of election card, ration card or passport could suggest presence of the review petitioner on the spot, their presence on the spot would not ipso facto entitle them to legal protection by virtue thereof.72. it is trite that every occupancy by itself also does not create either any title or a right to remain in possession. it is only if the entry into possession of the property was lawful, that there is a legal right to remain in possession; or, if a person is in settled possession that the court would grant the equitable relief of injunction to him against forcible dispossession. a person in settled possession can be rev.p. no.242/2017 in w.p.(c)no.7955/2015 page 49 of 75 dispossessed only after due process of law. it has been held that in certain cases, a person can be evicted by use of reasonable force, in others, by due process of law.73. in this regard, reference may be made to the pronouncement rendered by one of us (gita mittal, j.) reported at ilr (2012) 3 del 247 institute of human behaviour and allied sciences v. govt. of nct of delhi wherein it was held thus: “92. xxx in this regard, the following principles were laid down by the supreme court in the judgment reported at (2004) 1 scc769rame gowda (d) by lrs. v. m. varadappa naidu (d) by lrs “10. it is thus clear that so far as the indian law is concerned the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser. a rightful owner who has been wrongfully dispossessed of land may retake possession if be can do so peacefully and without the use of unreasonable force. if the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. the law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking law in his own hands, and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force. in the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. law rev.p. no.242/2017 in w.p.(c)no.7955/2015 page 50 of 75 presumes the possession to go with the title unless rebutted. the owner of any property may prevent even by using reasonable force a trespasser from an attempted trespass, when it is in the process of being committed, or is of a flimsy character, or recurring, intermittent, stray or casual in nature, or has just been committed, while the rightful owner did not have enough time to have recourse to law. in the last of the cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner.11. it is the settled possession or effective possession of a person without title which would entitle him to protect his possession even as against the true owner. the concept of settled possession and the right of the possessor to protect his possession against the owner has come to be settled by a catena of decisions. illustratively, we may refer to munshi ram v. delhi administration -:806. puran singh v. the state of punjab -: (1975) 4 scc518: air1975sc1674and ram rattan v. state of uttar pradesh -:1977. chlj433 the authorities need not be multiplied. in munshi ram's case (supra), it was held that no one, including the true owner, has a right to dispossess the trespasser by force if the trespasser is in settled possession of the land and in such a case unless he is evicted in the due course of law, he is, entitled to defend his possession even against the rightful owner. but merely stray or even intermittent acts of trespass do not give such a right against the true owner. the possession which a trespasser is entitled to defend against the rightful owner must be settled possession, extending over a sufficiently long period of time and acquiesced to by the true owner. a casual act of possession would not 1968 cri lj rev.p. no.242/2017 in w.p.(c)no.7955/2015 page 51 of 75 to an true owner have the effect of interrupting the possession of the rightful owner. the rightful owner may re-enter and re-instate himself provided he does not use more force than is necessary. such entry will be viewed only as resistance intrusion upon his possession which has never been lost. a stray act of trespass, or a possession which has not matured into settled possession, can be obstructed or removed by even by using necessary the force. in puran singh's case (supra), the court clarified that it is difficult to lay down any hard and fast rule as to when the possession of a trespasser can mature into settled possession. the ‘settled possession’ must be (i) effective, (ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. the phrase settled possession does not carry any special charm or magic in it nor is it a ritualistic formula which can be confined in a strait-jacket. an occupation of the property by a person as an agent or a servant acting at the instance of the owner will not amount to actual physical possession. the court laid down the following tests which may be adopted as a working rule for determining the attributes of ‘settled possession’: i) that the trespasser must be in actual physical possession of the property over a sufficiently long period; that to the knowledge (either express or implied) of the owner or without any attempt at concealment by the trespasser and which contains an element of animus possidendi. the nature of possession of the trespasser would, however, be a matter to be must be ii) the possession rev.p. no.242/2017 in w.p.(c)no.7955/2015 page 52 of 75 decided on the facts and circumstances of each case; iii) the process of dispossession of the true owner by the trespasser must be complete and final and must be acquiesced to by the true owner; and iv) that one of the usual tests to determine the quality of settled possession, in the case of culturable land would be whether or not the trespasser, after having taken possession, had grown any crop. if the crop had been grown by the trespasser, then even the true owner has no right to destroy the crop grown by the trespasser and take forcible possession.12. in the cases of munshi ram (supra) and puran singh (supra), the court has approved the statement of law made in lloram v. rex -: air1949all 564, wherein a distinction was drawn between the trespasser in the process of acquiring possession and the trespasser who had already accomplished or completed his possession wherein the true owner may be treated to have acquiesced in: while the former can be obstructed and turned out by the true owner even by using reasonable later, may be dispossessed by the true owner only by having recourse to the due process of law for reacquiring possession over his property.” force, the 93. a full bench of this court was considering a claim by the petitioner for permanent injunction restraining the municipal corporation from interfering or disturbing him from a kiosk which was allotted to him in an auction on a licence in air1978delhi 174chandu lal v. municipal corporation of delhi. on the issue of the rights of the corporation to take possession of the kiosk after termination rev.p. no.242/2017 in w.p.(c)no.7955/2015 page 53 of 75 of the licence, the full bench of court has observed as follows:— “25. …….after the termination of the license, the licensor is entitled to deal with the property as he likes. this right he gets as an owner in possession of his property. he need not secure a decree of the court to obtain this right. he is entitled to resist in defense of his property the attempts of a trespasser to code upon his property by exerting the necessary and reasonable force to expel a trespasser. if, however, the licensor uses excessive force, he may make himself liable to be punished under a prosecution, but he will infringe no right of the licensee. no doubt a person in exclusive possession of the property is prima facie to be considered to be a tenant, nevertheless he would not be held to be so if the circumstances negative any intention to create a tenancy.” 94. light on this issue is thrown on the above issue also by the observations of the supreme court while examining the claim by a person in exercise of right of private defence of property under sections 96, 97, 100 and 101 of the indian penal code, 1860. in this regard, the following principles laid down by the supreme court in (2005) 12 scc657ishna alias bhiswadeb mahato v. state of west bengal:— “85. private defence can be used to ward off unlawful force, to prevent unlawful force, to avoid unlawful detention and to escape from such detention. so far as defence of land against trespasser is concerned, a person is entitled to use necessary and moderate force both for preventing the trespass or to eject the trespasser. for the said purposes, the use of force must be the minimum necessary or reasonably believed to be necessary. a reasonable defence would rev.p. no.242/2017 in w.p.(c)no.7955/2015 page 54 of 75 mean a proportionate defence. ordinarily, a trespasser would be first asked to leave and if the trespasser fights back, a reasonable force can be used.” 95. it is trite, therefore, that mere occupation of another's property simplicitor could not entitle a person to an injunction against dispossession.” 74. challenge to the above pronouncement was taken upto the supreme court of india vide slp(c) no.35355-35356/2014, which was rejected. review petitions thereto being r.p. nos. 860-861/2015 stood dismissed on 25th march, 2015.75. the present review petitioners have not only flagrantly violated the series of orders of this court in all the above writ petitions but also the law laid down by the supreme court.76. so far as open land is concerned, a presumption of possession is always deemed to be of the owner. in this regard, reference may usefully be made to a pronouncement of the gujarat high court reported at air1998gujarat 17 navalram laxmidas devmurari v. vijayaben jayvantbhai chavda. in this case, the gujarat high court was considering a claim by the respondent for declaration of title to the suit property and injunction directing the appellant to remove a water tank, shed etc constructed over the same. the respondent had set up a plea that only one of the shops constructed on plot of land, which belonged to her husband, had been rev.p. no.242/2017 in w.p.(c)no.7955/2015 page 55 of 75 let out to the appellant. the open plot of land was in her possession and the appellant was not entitled to make use of any other part of the plot. the respondent had filed the suit making a grievance that despite this fact, the appellant had constructed a roof in front of the rented shop constructed a water tank and shed for keeping a motor pump to be used for the purpose of drawing water in the suit land and damaged the compound wall, without her knowledge and consent. a prayer was made in the suit seeking declaration and injunction that the appellant had no right to use or enter into the suit land except the house and shop let out to him. the respondent had also sought an injunction directing the appellant to remove the illegal constructions made by him over the suit land and claimed a permanent injunction restraining the appellant from disturbing the respondent (plaintiff) from using the suit land. the appellant/defendant had also set up a prohibition under section 34 of the specific relief act and contended that the suit for declaration simplicitor without seeking the relief of possession was not maintainable. this suit was decreed by the trial court.77. the valuable observations and findings of the court deserve to be considered in some detail and are being reproduced in extenso hereafter : “11. the concept of possession is an abstract one. the ordinary presumption is that possession follows title. presumption of possession over an open land always is deemed to be that of the owner and not of a trespasser. an open place of land shall be presumed rev.p. no.242/2017 in w.p.(c)no.7955/2015 page 56 of 75 to be in possession of the owner unless it is proved by the trespasser that he had done some substantial acts of possession over the land which may excite the attention of the owner that he has been dispossessed. as indicated above, an owner of an open land is ordinarily presumed to be in possession of it and this presumption becomes strong in his favour when the defendant fails to establish the ground on which he claims to have come in possession. the presumption that possession goes with the title is not limited to particular kind of cases where proof of actual possession is impossible on account of nature of the land, such as boundary land, forest land or submerged land. the presumption applies to all kinds of lands. where plaintiff proves his title, but not any act of possession and the defendant does not prove possession except unnoticed user of small part of land, the presumption that possession follows title will come into play.12. …… as the appellant has miserably failed to establish the ground on which he claims to have come in possession of the disputed land, i am of the view that presumption that possession follows title will come into play. except construction of water tank and shed over the open land and construction of roof in front of the shop the appellant has not done any substantial acts of possession over the land which may excite the attention of the respondent that she has been dispossessed. it may be mentioned that the construction is over a small piece of land which totally admeasures 995-1 sq. yds. the small piece of land over which the construction was made, was of no present use to the respondent and being convenient in many ways to the appellant, the latter had made use of rev.p. no.242/2017 in w.p.(c)no.7955/2015 page 57 of 75 such user amounts in land. whether it in various ways without notice of the respondent. such user as this, cannot be construed as an act of dispossession of the respondent. user of this sort under similar circumstances is common in this country and excites no particular attention. it is neither intended to denote or understand as denying on one side or the other a claim to dispossession of the to dispossession or not has been considered by the court the case of state of gujarat v. patel chhotabhai bhaijibhai. in the said case, the land belonged to the government. the respondent had been tethering cattle for more than 60 years. it was pleaded by the respondent that he had become owner of the land by adverse possession, as he was using the same for tethering cattle. after making reference to the case of framji cursetji v. goculdas madhowjiilr (1992) 16 bom 338, the court has held that evidence to show user of the site by tethering cattle for more than 60 years would not constitute possession. again, in the case of memon mohmed ismail haji (supra), the plaintiff had filed suit for mandatory injunction for removal of the foundation dug by the plaintiff and for prohibitory injunction restraining the defendant from doing any construction on the suit land. the plaintiff had all along asserted that possession of the open land was with him. the injunction prohibiting defendant from entering into the land was also sought. the suit was dismissed by trial court as well as first appellate court. it was found that the disputed property therein was an open land where some construction material had been placed and not only foundations were dug, but construction work was also being done. it was noticed that the first appellate court had negatived claim of the defendant that they rev.p. no.242/2017 in w.p.(c)no.7955/2015 page 58 of 75 were in legal possession of the land, as they were using part of it for the purpose of drying saries. however, the first appellate court had treated act of drying saris as an act of dispossession of the plaintiff. the high court has held that all along the defendant used open land as any neighbour could use for drying saris and if the plaintiff's suit was on the allegation that neighbours were now committing acts of waste of his property by digging foundation and they be restrained from doing so, the averments in the plaint could never be treated as averments of the plaintiff having been dispossessed. while allowing the second appeal the court has observed as under:— “the plaintiff all along asserted that possession of the open plot was with him as he was a title holder. he even never sought any declaration of his title and claimed only an injunction because such open plot would always be in his possession as a title holder. the defendant tried to assert adverse title to this open land and he failed. therefore, the defendant had no possession whatever of this open land. even on his own showing, at the date of the suit he was found only to have started doing waste of the plaintiff's property. the neighbour may not object so long as the user was of drying saris on this land. a neighbour is surely entitled to object when his land is sought to be wasted and such adverse claim is sought to he asserted on the relevant the injunctions were against these trespassers on the footing that the plaintiff had remained in possession of this open land and the defendant-trespasser who was only trying to commit waste should be prevented therefore, claimed suit land. rev.p. no.242/2017 in w.p.(c)no.7955/2015 page 59 of 75 from committing such waste, by removing whatever he had done and that he should be restrained from entering in this land. therefore, the averments were consistent with his being in possession of the land and the defendant- trespasser being completely out of possession. these allegations were completely misread by the lower appellate court and contrary to its own finding that drying of saris would not amount to legal possession, it has recorded a perverse finding that this trespasser was in possession and on that ground, the plaintiff has been non-suited.” 13. from the principle laid down in the above-quoted decision, it is evident that mere user of part of the open land would not amount to dispossession of the owner and owner is entitled to object when the property is sought to be wasted and or when adverse claim is sought to be asserted with reference to the open land. in the case of framji curseti (supra) in addition to tethering cattle some construction had also been made. but, inspite of that it was held that the user by tethering cattle and the construction of a temporary structure would not amount to possession in case of open land.14. at this stage it would be advantageous to notice another unreported judgment rendered in special civil application no.3by m.b. shah. j.(as he then was) on 2/5/6-3-85. therein the petitioner had filed h.r.p. suit before the small causes court at ahmedabad for a declaration that he was tenant of the suit land. he had also prayed for a permanent injunction. during suit, an the pendency of rev.p. no.242/2017 in w.p.(c)no.7955/2015 page 60 of 75 that found application exh. 5 was filed by him claiming temporary injunction. the declaration and permanent injunction were claimed on the ground that he was tenant in possession of land admeasuring 1300 sq. yds. out of final plot no.1099 at naranpura and had not only constructed kachcha shed on it, but was also keeping cattle, manure and other articles in the land. the small causes court the petitioner did not prove prima facie case and was not tenant of house along with open piece of land admeasuring 1300 sq. yds. in that view of the matter, the small causes court rejected application exh, 5. thereupon the petitioner preferred an appeal before the appellate bench of the small causes court. after the appellate bench appreciation of evidence, dismissed therefore, approached high court by way of filing petition under article 227 of the constitution of india. the high court considered the question whether the petitioner could be said to be in possession of the land in dispute merely because he was tethering cattle, storing cow dung over some part of the land and that some kachcha shed of 9′ × 9′ was constructed by him over the land. after making reference to the cases of (i) state v. chhotabhai (supra) and framji cursetji (supra), it is held as under:— the appeal. the petitioner, record to show that there case also, the present “in is no evidence on the petitioner is in exclusive possession of the land in dispute, this type of” casual unnoticed user of open piece of land cannot be considered as exclusive possession of land and conferring right over the land in the person using that the respondent is the owner of land and the is an admitted fact the it. it rev.p. no.242/2017 in w.p.(c)no.7955/2015 page 61 of 75 doctrine that possession follows title requires to be applied, as it is vacant land. the panchnama clearly shows that on the three sides of the land there is fencing and this also indicates that the respondent is in possession of the land. so taking into consideration the fact that the petitioner has failed to prove his prima-facie right, title or interest over the land in dispute or even exclusive possession of the land, the learned judge has rightly not granted injunction as prayed for by the plaintiff.” from the principle of law enunciated in the above quoted case, it is evident that casual unnoticed user of open piece of land cannot be considered as exclusive possession of the land and conferring right over the land in the person using it.” (emphasis supplied) for the above reason as well, the trespassers in the present case cannot be protected.78. in view of the above narration, it is apparent that the review petitioner has set up a claim in the special leave petition which was completely contrary to the claim which was set up by his predecessors-in-interest in suit no.4/1980; the stand of his alleged predecessors-in-interest in the purported will as well as the general power of attorney. the applicant is unable to even remotely establish that his predecessors-in-interest were mutawallis in respect of the rev.p. no.242/2017 in w.p.(c)no.7955/2015 page 62 of 75 dargah shah firdaus, dargah musafir shah with a wall type mosque which is the subject matter of the notification of 1970 of the delhi government. the petitioner has failed to even remotely supplement the pleas set up by him in cm no.18595/2017 for impleadment and cm no.18596/2017 for deferring the demolition. in fact, as noted by us in para 7 of the order dated 24th may, 2017, the plea set up before the supreme court is completely contrary to the pleas set up in the will of 1980; general power of attorney of 1981 as well as in the application before us.79. we may also note that the petitioners have claimed the occupancy for hundreds of years through their predecessors-in- interest. the documents placed before us would show that the electricity connection was installed for the first time in the year 2003. there is no receipt regarding the installation or availability of any sewage connection on the subject land.80. in fact, the plea of mohd. yusuf and mohd. yunus of the predecessor-in-interest in the suit no.4/1980, delhi wakf board v. mohd. yunus & ors. belies the plea that the review petitioner have set up before us.81. it is also important to note that as per the notification dated 31st december, 1970 relied upon by the respondents, the land in question could be used only for the object of “burial of the dead”. as per the review petitioners as well as the status reports of the authorities on record and the information noted by us in our orders, this land stands rev.p. no.242/2017 in w.p.(c)no.7955/2015 page 63 of 75 misused for rampant commercial usage.82. the review petitioners have therefore, miserably failed to establish existence of old residential structures or possession thereof by their ancestors. on the contrary, they have established attempt to trespass and illegal usage of the land in question. they have failed to establish any entitlement to interim directions.83. the writ petitioner contends that it is a public park owned by the delhi development authority (respondent no.2 herein) which is known as the amir khusro park.84. para 75 85. the delhi development authority - respondent no.2 has filed a status report dated 30th may, 2017 contending that, vide letter no.l&do/l-iia/rti/2012/105/257, the ministry of urban development, through the land and development office, had declared that the triangular park was allotted by it to the delhi development authority in the year 1972 to be maintained as green.86. according to the delhi development authority, the statutory mandate of the master plan has to be strictly complied with and no new structure can be protected or saved thereunder which are apparently non-conforming. it is further contended that the illegal new structures stand constructed with ulterior motives adjacent to old structures giving them the facade of merging with the old structures so as to give them the appearance of being old structures, which cannot be protected. this position is not contested by the delhi wakf board rev.p. no.242/2017 in w.p.(c)no.7955/2015 page 64 of 75 as well. whatever be the parties stand, it cannot be disputed that the law has to be complied with.87. so far as the structures which are ancient or old, which have to be protected, are concerned the notification of 1970 establishes the existence of dargah shah firdaus, dargah musafir shah and a wall type mosque. the delhi wakf board also maintains the same position. therefore, these are the only old structures on the land in question.88. in the case in hand, both the delhi development authority as well as delhi wakf board are staunchly contesting the claim of the applicant and have urged that they are rank encroachers who are trying to crystallize a legal claim on the property.89. while the delhi development authority has asserted its entitlement, it is not disputed that the property has to be maintained as a green area.90. delhi wakf board has asserted that the land was a muslim graveyard and that it had the structures of two graveyards, namely, dargah shah firdaus, dargah musafir shah with a wall type mosque. the review petitioners claim several structures wherein they claim to have been residing. the claim on such residences structures is not supported by any document in the nature of the government notifications extracted above or government records. there is no evidence to establish existence of such structures.91. we make it clear that we shall consider the issue of vesting of rev.p. no.242/2017 in w.p.(c)no.7955/2015 page 65 of 75 land and title in the dda or the delhi waqf board separately in the writ petition. the same is not relevant for the present petition as all parties are agreed that the above old structures have to be preserved and the land has to be maintained as a green. all the authorities have complained of rampant encroachments. orders of the division bench for removal of the unauthorized encroachments and developments have remained uncomplied with for years together. the police has complained of strong resistance. these orders have obtained finality. they bind this court. they certainly not only bind but have to be complied with by the respondents as well as the review petitioners.92. it is also noteworthy that the will and the general power of attorney from which the review petitioner is deriving right and interest referred to dargah chitli khanka whereas in the supreme court order dated 19th may, 2017, the petitioner has referred to masjid and dargah musafir shah. the notification of 1970 refers to a “wall type mosque”. the review petitioner therefore, has no locus standi to intervene in the present writ petition and has no legal right to remain in occupation of any portion of the tikona graveyard park also known as amir khusro park.93. we may also usefully refer to the status report dated 22nd may 2017 filed by the delhi development authority wherein it has been stated that the delhi development authority has removed illegal and unauthorized encroachments including jhuggis (shanties), kabaris, illegal constructions etc. at the amir khusro park and that the rev.p. no.242/2017 in w.p.(c)no.7955/2015 page 66 of 75 structure in the nature of masjid. in the status report, it has been stated that old structures in the nature of dargah, masjid and few scattered graves (unmarked) would not be demolished. illegal actions of the respondents which are causing irreparable loss and damage not only to the environment of the amir khusro park but creating dangerous consequences and imperilling the life and liberty of the other residents in the city and visitors to the area 94. there are other extremely monuments in the immediate vicinity of the tikona park/amir khusro park. the park is bound by the lodhi road as well as lala lajpat rai marg (earlier known as the link road) while the mathura road connects the traffic coming from agra to the rest of the delhi. lala lajpat rai marg is the only connection between the south delhi and the rest of the delhi. the lodhi road connects the entire area to the link road near the all india institute of medical sciences going towards gurgaon as well as on to the ring road. these arterial roads are therefore, the major lifelines and circulation areas and at any point of time bear extremely heavy traffic.95. inspector ved prakash, the then sho, ps hazrat nizamuddin in his status report dated 17th october, 2015 had stated as follows : “it is most respectfully and humbly submitted that vide this petition, the petitioner has raised issues regarding encroachment of land and establishment of jhuggies in the area of khusro park.... petitioner has further raised various issues including that the said park is within the 100 meters of rev.p. no.242/2017 in w.p.(c)no.7955/2015 page 67 of 75 the archaeological survey of india’s historical monument known as sabz burl (neela gumbad) and including people used to bath and urinate in the open. in this regard, it is submitted that the said land opposite to basti hazrat nizamuddin is lying vacant and popularly known as khusro park. on the said land, few years back, initially a rain basera was built by shakti shalini ngo to provide shelter for female and children. around 300-400 people who were either beggars, homeless and vagabond also started taking shelter in khusro park and their numbers stated increasing. they started living there by way of putting temporary structures with the help of tarpaulin. on 30.03.2013 at around 10 am, dda horticulture staff came over to police station for police assistance in removing encroachment in khusro park in the shape of temporary shelters, made by some persons. police staff along with horticulture staff of dda went to khusro park and horticulture staff removed the encroachment in khusro park. while encroachment was being removed, some miscreants with a view to create mischief, burnt wastes etc. the said issue was also highlighted in writ petition no.29 of 2010 in the matter of court on its own motion vs. state of nct of delhi & ors. time to time efforts were made the encroachments at our own, but due to strong protest of residents, no fruitful result came out as they put forward their females and also throw children in front of the police party and level all kind of false allegations against the police party. permanent picket was also deployed at the to stop rev.p. no.242/2017 in w.p.(c)no.7955/2015 page 68 of 75 said site.” (emphasis by us) 96. the respondents do not mention existence of any sewage or sanitation facilities on the land in question. no toilets are referred to. as a result, if habitation is permitted in this park there would be huge issues of garbage as well urination & defecation in the open area, if people are permitted to reside therein.97. in wp(c)no.8917/2015 gauri grover vs. government of nct of delhi and wp(c)no.9006/2015 arpit bhargava vs. gnct of delhi through its chief secretary & ors., this court is faced with the huge menace of mosquitoes in delhi, i.e., disease bearing vectors. already extreme cases of dengue and chikanguniya have surfaced. both these diseases are proved to be fatal and in the past have resulted in tremendous fatalities.98. the park, which is the subject of the writ petition, is in close proximity, on the one side to the school providing education to thousands of people and on the other side, by hotel.99. in an order dated 2nd june, 2017 passed in wp(c)no.8917/2015 gauri grover vs. government of nct of delhi and wp(c)no.9006/2015 arpit bhargava vs. gnct of delhi through its chief secretary & ors., we have noted the imperative requirement of accommodating the right to health, clean air and environment of the residents of delhi, an essential part of right to life under article 21 of the constitution of india and observed that this right cannot be rev.p. no.242/2017 in w.p.(c)no.7955/2015 page 69 of 75 compromised when consideration of the right to shelter comes up. in this regard, we have also noted the concerns of the supreme court of india regarding the situation in delhi in the judgments, relevant portions whereof are reproduced thus: (i) subhash kumar vs. state of bihar : (1991) 1 scc598 “7.......right to live is a fundamental right under article 21 of the constitution and it includes the right of enjoyment of pollution-free water and air for full enjoyment of live. if anything endangers or impairs that quality of life in derogation of laws, a citizen has right to have recourse to article 32 of the constitution for removing the pollution of water or air which may be detrimental to the quality of life......” (emphasis supplied) (ii) m.c. mehta vs. union of india: (1992) 3 scc256 “2. we are conscious that environmental changes are the inevitable consequence of industrial development in our country, but at the same time the quality of environment cannot be permitted to be damaged by polluting the air, water and land such as extent that it becomes a health hazard for the residents of the area. we are constrained to record that delhi development authority, municipal corporation of delhi, central pollution control board and delhi pollution control committee have been wholly remiss in the performance of their statutory duties and have failed to protect the environments and control air pollution in the union territory of delhi. utter disregard to environment has placed delhi in an unenviable position of being the world’s third grubbiest, most polluted and unhealthy city as per a staudy conducted b the world health organisation. needless to say that every citizen has a right rev.p. no.242/2017 in w.p.(c)no.7955/2015 page 70 of 75 to fresh air and to live in pollution-free environment. ” (emphasis supplied) (iii)m.c. mehta vs. union of india: (2004) 12 scc118 “10. the natural sources of air, water and soil cannot be utilised if the utilisation results in irreversible damage to environment. there has been accelerated degradation of environment primarily on account of lack of effective enforcement of environmental laws and non-compliance of the statutory norms. this court has repeatedly said that the right to live is a fundamental right under article 21 of the constitution and it includes the right to enjoyment of pollution-free water and air for full enjoyment of life.” (emphasis supplied) (iv) arjun gopal vs. union of india: (2017) 1 scc412 “10. when we refer to these extreme effects, we are not merely referring to the inconvenience caused to people, but to abject deprivation of a range of constitutionally embedded rights that the residents of ncr ought to have enjoyed. needless to state, the grim situation of air quality adversely affected the right to education, work, health and ultimately, the right to life of the citizens, and this court is constitutionally bound to address their grave concerns. may we remind ourselves, that this is not the first time that this court was impelled into ensuring clean air for the citizens of the capital region.” (emphasis supplied) rev.p. no.242/2017 in w.p.(c)no.7955/2015 page 71 of 75 (v) m.c. mehta vs. union of india (uoi) and ors.: (2004) 6 scc288 to posterity and “14. it is also necessary to note as to what stand from time to time the ministry of urban development has taken on the aspect of in situ regularisation. in an affidavit dated 4-12- 2000 filed by its deputy secretary, reliance has been placed by the ministry upon the statement made by its minister on the floor of the house on 24-11-2000. in that statement, opposing regularisation, the minister said as to what delhi we want to live in, what type of legacy do we wish to bequeath to our children and grandchildren; do we want our city to become a junkyard of unauthorised constructions, mirroring civic and moral chaos, or an orderly and disciplined capital of a resurgent republic, embodying values of justice and honesty on the basis of which we have often claimed a pre-eminent position for our culture and civilisation. the statement further gave facts and figures that 50 million gallons per day of industrial waste is going into the yamuna and said that what is seen flowing in it today is nothing but sewage and industrial waste. in okhla alone, for instance, during march-april 2000, the biochemical oxygen demand (bod) level in the river was about 70 mg per litre as against a standard of 3 mg per litre i.e. 25 times more than the permissible level. an apprehension was expressed that if the present attitudes and practices persist, delhi would run the risk of having as many as 30 million people in the next few years and becoming an ugly, unhealthy, unworkable and unliveable city. in the process, a fatal blow would also be dealt to the development of the national capital region which comprises a substantial part of three important neighbouring states of haryana, rajasthan and uttar pradesh. the affidavit states that in case of large number of rev.p. no.242/2017 in w.p.(c)no.7955/2015 page 72 of 75 residential colonies, with so-called 70% concentration of industries of which the entire land use is sought to be changed from residential to industrial, should the master plan be amended to destroy its very soul and structure or subvert the basic norms of health, habitation and environment or reward the illegal establisher of industries and in the process penalise the law-abiding residents and condemn them to stay forever in industrial areas or force them to abandon their houses built with hard-earned income?. it also states that no one has made it clear where the residents would be taken, what would the cost of resettlement be, who will bear it and how would the layouts and pattern of services and infrastructure, meant for residential colonies, be adjusted to the requirements of industries and consequent traffic and transport that would flow not only in the colonies in question but also in their neighbourhood.” (emphasis supplied) 100. no court can permit the lives of the lawful residents in the surrounding areas, as well as of the visitors to these monuments which are of international repute, to be imperilled. it is our constitutional duty to ensure that the right to life of all residents of delhi is not imperilled if activity which would lead to increase of insanitary conditions as well as breeding of mosquitoes carrying dangerous diseases is continued or permitted. the photographs on record also suggest such activities.101. it is clearly evident from the pleadings of the review petitioners that they are attempting to and had caused encroachments over the rev.p. no.242/2017 in w.p.(c)no.7955/2015 page 73 of 75 park in which they have no right, title or interest. the same is completely impermissible.102. if the complaints made on court record before us are correct, the review petitioners are not only indulging in efforts to grab the land of the park but have also committed fraud by renting out portions and taking rent and other charges and carrying out commercial usage on the land. these fraudulent activities would be penal offences under the provisions of the indian penal code and municipal law. unfortunately, the authorities or local police have failed to comply with the court orders as above. the police has also failed to conduct any investigation into the gross illegalities at the spot or to ensure compliance with the law. conclusion 103. for all these reasons, clearly the review petitioners are interlopers and have no right whatsoever on the subject matter of the writ petition.104. the review petitioners are unable to point out any error apparent from the face of the record entitling a review of the order dated 16th may, 2017. this review petition is therefore, dismissed. result (i) this review petition is devoid of legal merit and is hereby dismissed. the pending application is also dismissed. rev.p. no.242/2017 in w.p.(c)no.7955/2015 page 74 of 75 (ii) a direction is issued to the dcp, district south east as well as the sho of the concerned police station to cause an investigation to be conducted into the fraudulent and criminal activities which are the subject matter of the writ petition as well as the review petition and to proceed in accordance with law against the persons found culpable for the aforenoticed illegal activities. a status report shall be filed before us within eight weeks from today. acting chief justice c.hari shankar, j june05 2017 aj/mk rev.p. no.242/2017 in w.p.(c)no.7955/2015 page 75 of 75

Judgment:

$~ *IN THE HIGH COURT OF DELHI AT NEW DELHI + Review Petition No.242/217 and CM No.21184/2017 in WP(C)No.7955/2015 % SAVYASACHI K. SAHAI Through: Reserved on:

30. h May, 2017 Date of decision :

5. h June, 2017 .....

... Petitioner

... Petitioner

in person. versus UNION OF INDIA & ORS ..... Respondent Through: Mr. U. Hazarika, Sr. Adv. with Mr. Syed Hasan Isfahani, Mr. Jayant Mohan, Mr. Aamir Khan, Advs. for the review petitioners/impleaders in Mr. Vikram Jetley, CGSC for R-1 & 4 Mr. Rajeev Kr. Yadav, Adv. for Intervenor/applicant CM No.18177/2016 Mr. Wajeeh Shafiq, SC for Delhi Waqf Board with Mohd. Qaseem and Mr. Dhairaj Kapoor, Advs. Mr. Jayant Tripathi and Mr. Dinesh Dahiya, Advs.for R-4/DG ASI Mr. Sanjeev Sabharwal, SC for DDA Mr. Satyakam, ASC for GNCTD with Mr. Pankaj Sharma, Adv. for R-5 & 6 and Insp. Jarnail Singh, SHO PS Nizamuddin Ms. Diksha Lal for Mr. Ajjay Aroraa, Adv. for SDMC Mr. Mohit Chugh for Mr. Sanjeev Ralli, Adv. for DPCC Rev.P. No.242/2017 in W.P.(C)No.7955/2015 Page 1 of 75 CORAM: HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE C. HARI SHANKAR JUDGMENT GITA MITTAL, ACTING CHIEF JUSTICE1 This Review Petition No.242/2017 has been filed by four applicants, namely, Mohd. Shakeel, Mohd. Allauddin and Mohd. Mehmood (claiming to be the three sons of Late Mohd. Yusuf and Late Mohammed Yunus) and Mohd. Nasir (son of Mohd. Hakmuddin) seeking review of our order dated 16th May, 2017. The review petitioners have, in the review petition, claimed that the same relates to a land which is the subject matter of the writ petition. For the purpose of expediency, we reproduce hereunder our order dated 16th May, 20

“1. Notice.

2. Mr. Rajeev Kr. Yadav, learned counsel for the petitioner; Mr. Sanjeev Sabharwal, standing counsel for the DDA; Mr. Vikram Jetly, Central Government Standing Counsel and Mr. Satyakam, Additional Standing Counsel for the GNCTD accept notice. It is submitted by Mr. Sanjeev Sabharwal, learned 3. standing counsel for the DDA that out of the total Tikona Park which as per the petitioner is 12.08 acres, a very small portion of the property is old construction and that the same is not the subject matter of demolition. There is unauthorised construction which has been raised after 2015.

4. Neither any site plan is placed with the application nor Rev.P. No.242/2017 in W.P.(C)No.7955/2015 Page 2 of 75 there is any documents to establish title.

5. Mr. Rajeev Kumar, learned counsel for the petitioner has drawn our attention to an order dated 12th January, 2011 passed in W.P.(C) No.3927/2010 wherein this court has noted earlier decision passed in W.P.(C) No.1512/1984 and directions were issued to the Union of India for taking appropriate steps for removal of unauthorised encroachment and unauthorised construction as they had taken place in violation of the orders passed in 1984. 2011, the court had also observed that : It is pointed out that by the order dated 12th January, “.... Needless to say, when we have said unauthroised construction and encroachments ought to be removed, it is obligatory on the part of the Union of India that no person makes any kind of unauthorised construction or encroachment. It needs no special emphasis to state that if the petitioner is aggrieved by an action of the Union of India, it can approach the appropriate legal forum as advised in law.

3. In view of the aforesaid, we direct the Union of India to proceed against the persons, who have unauthorisedly constructed and encroached on the land in question, in accordance with law.” (Emphasis by us) 6. The petitioner as well as ld. counsel for the other parties contend that the properties of these applicants have come up on this spot after the passing of the above orders.

7. We find that there is nothing to support that the construction which is reflected in the photographs by the applicants is old. On the contrary, the photographs show brand new constructions which are freshly painted. None of the photographs show any old construction. Rev.P. No.242/2017 in W.P.(C)No.7955/2015 Page 3 of 75 8. We may mention that even the photographs placed with the application prima facie do not show the correct or the complete position. They certainly do not support the submissions made in the applications.

9. In para 3 of CM No.18595/2017, a bald assertion of “since their ancestors” and “in a portion of the park” is made without any specifications. The applications mention not a single date of construction or occupancy. No details of occupation are mentioned. Not a whit of right or title or interest of the applicant in the subject property is mentioned. There is no document to support even the occupancy.

10. The respondents shall strictly ensure that no old construction is demolished.

11. Let a status report in this regard be placed before us tomorrow i.e. on 17th May, 2017.

12. List on 17th May, 2017. Dasti under the signatures of Court Master.” Grave urgency was expressed by the review petitioners. It is 2. submitted by Mr. U. Hazarika, ld. Senior Counsel for the review petitioners that all the relevant records have been placed along with the review petition. Additionally, along with the review petition, documents running into 206 pages were also placed before us. The same were taken on record.

3. Consequently, we have heard at great length Mr. U. Hazarika, ld. Senior Counsel for the review petitioners as well as all other counsels in this review petition. Rev.P. No.242/2017 in W.P.(C)No.7955/2015 Page 4 of 75 Description of the subject land and Nature of old structures theren 4. The instant case is concerned with a triangular piece of land bounded by major roads on all three sides. On the southern side, it is bounded by the Lodhi Road; on the western side by Mathura Road and on its eastern side by the Lala Lajpat Rai Marg (earlier known as the Link Road).

5. Along with the review petition, the applicants have placed a copy of a notification dated 27th November, 1970 which has been issued by the Delhi Administration in exercise of powers conferred by sub-section (1) of Section 12 of the Delhi Development Authority Act, 1957 read with the notification dated 14th February, 1969 issued by the Government of India. This notification petition restored an earlier notification dated 10th February, 1970 (not placed on record).

6. In para 2.2 of the review petition, the applicants explain that this notification notified the Waqf properties giving their descriptions. Unfortunately, the complete notification dated 31st December, 1970 has also not been placed before us. An incomplete list of some enclosures have been filed. We extract hereunder the extract of the notification dated 31st December, 1970 which is relied upon by the review petitioner : Rev.P. No.242/2017 in W.P.(C)No.7955/2015 Page 5 of 75 (1) (2) S.No Name of Wakf & Wakif, if known (3) Date or year of creation of Wakf (4) Nature of object of Wakf WARD - I (5) Detail of Wakf Deed if any, with ref. to registration records (6) (7) (8) Name and address of Mutawalli Wakf gazette notification dated/remarks Description of Wakf property. (A) Immovable its location, nature, tenure, plot or Mpl.No.(B) Moveable, its nature & investment, (area sq.yds.) xxx xxx xxx 1078. Muslim Over 100 years. Burial of dead Delhi Wakf Board (31-12-1970 Page No.1354/231) Graveyard, Opposite Oberoi Inter Continental Hotel, Mathura Road, Nizamuddin, New Delhi. Graveyard in triangular shape bounded by Mathura Road, Lodhi Road & Link Road (Area 12.8 area minus area of Okhla Canal) containing Dargah Shah Firdaus and Dargah Musafir Shah with a wall Mosque. Over 200 acc. graves outside site.

7. It appears that there were disputes regarding Government of India acquiring several Waqf properties between the year 1911 and 1915 for the extension of the Delhi City. There was a lot of resentment to this acquisition. The Waqf Act, 1954 came to be promulgated when several such properties being of religious character were notified as “waqfs” in the Delhi Gazette dated 16th April, 1970 and 31st December, 1970. Against these notifications, the Union of Rev.P. No.242/2017 in W.P.(C)No.7955/2015 Page 6 of 75 India had filed declaratory suits claiming ownership of these waqf lands. In order to resolve the disputes, in the year 1974, a Committee was formed under the Chairmanship of Shri S.M.M. Burney, i.e., the Burney Committee, which had given its recommendations dated 23rd March 1996 detailing 204 Waqf properties. Inter alia it was mentioned therein as follows : its claim to their ownership. in accordance with List of such Wakf properties is attached as Annexure “(a) Mosques and Dargahs : i) The Wakf properties which are in existence on the site and are in regular use shall be transferred to the Delhi Wakf Board/Mutawallies and the Government will The Wakf withdraw Board/Mutawallies will be empowered to develop these properties the Master Plan and Municipal bye-laws. “A”. ii) The Wakf which are non-existence on site and where the Government has constructed buildings, parks, etc. shall be handed over to the Government. The Delhi Wakf Board shall withdraw its claim to these properties. iii) The Wakf which are in dilapidated condition but capable of use, shall be handed over to the Delhi Wakf Board. The Government shall withdraw its claim to the ownership of such properties. The Delhi Wakf Board shall also be permitted to develop them in accordance with the Master Plan and Municipal bye-laws. The Delhi Wakf Board shall develop these Wakfs in a befitting manner keeping in view the architecture of the surrounding area in List of such properties is attached as Annexure “B”. Rev.P. No.242/2017 in W.P.(C)No.7955/2015 Page 7 of 75 List of such Wakfs is attached as Annexure “D”. which the Wakfs are located. The Delhi Gazette Notification of such properties shall stand and the Government will withdraw cases from the Courts against their notification. iv) The Wakf which are in a dilapidated condition and not capable of use shall not be handed over to the Delhi Wakf Board. The Delhi Wakf Board have no claim to these properties and agreement, if any, in respect of such Wakfs shall be terminated. (b) Graveyards : i) The graveyards where graves are in existence and which have been gazette as such, the Government will surrender its claim to these properties and also withdraw their case from the Courts. The Board shall be allowed to maintain and develop them where possible according to the Master Plan and Municipal bye-laws. The right of ownership, maintenance and development shall vest in the Delhi Wakf Board and the agreement, if any, in respect of such graveyards will be terminated. The graveyards where graves are not in existence ii) and which have been developed into Parks or on which buildings have been constructed by the Government or Corporation authorities, the Delhi Wakf Board shall be compensated for the same and the Wakf Board thereupon shall withdraw its claim to such graveyards in favour of the Government/Municipal Corporation. List of such graveyards is attached as Annexure “E”. List of such Wakf is attached as Annexure “C”. List of such graveyards is attached as Annexure “F”. (Emphasis by us) Rev.P. No.242/2017 in W.P.(C)No.7955/2015 Page 8 of 75 8. The review petitioner has placed before us an extract of the lists allegedly enclosed with the Burney Report, relevant portion whereof reads thus : “WAKF PROPERTIES UNDER DISPUTE WITH L&DO xxx xxx xxx 96. Muslim Graveyard Opposite Oberoi Hotel Graveyard is in triangle shape bounded by Mathura Road, Lodhi Road and Link Road New Delhi” “Annexure E TO THE REPORT OF THE SURVEY COMMITTEE : LAND & DEVELOPMENT OFFICE : xxx xxx xxx 14. Muslim Graveyard Opposite Oberoi Hotel in triangle shape bounded by Mathura Road, Lodhi Road and Link Road New Delhi” It is noteworthy thus that the Burney Committee report which is 9. dated 23rd March, 1976 makes no reference to any construction of a mosque or dargahs on the subject land and only refers to a Muslim graveyard.

10. The review petitioner has thereafter placed on record a copy of a certificate of a registration effected by the Delhi Waqf Board of the Rev.P. No.242/2017 in W.P.(C)No.7955/2015 Page 9 of 75 review petition registering and certifying under Section 125 of the Waqf Act, 1954 the following waqf properties in the name of Delhi Waqf Board of the review petition : DELHI WAQF BOARD DARYA GANJ, DELHI CERTIFICATE OF REGISTRATION xxx xxx Certificate given to DELHI WAKF BOARD, Darya Ganj, New Delhi xxx Name of Waqf . Muslim Qabrustan (Triangular), Dargah Shah Firdaus, Dargah Musafir Shah with a wall type mosque. Graveyard in triangular shape bounded by Mathura Situated in Road, Lodhi Road and Link Road (Area 12.8 Acrs) minus area of Okhla Canal) containing Dargah Shah Firdaus and Dargah Musafir Shah with a wall type mosque over 200 ... graves exists at site Name of Waqif .................... Entered at Register No.V, Page 107, Entry No.106, Given under my hand, this 1st day of March, 1979” (Emphasis supplied) 1.

2. 3.

4.

11. The Ministry of Works and Housing of the Government of India implemented the recommendations of the Burney Committee and transferred certain properties under the Control of the L&DO/DDA claimed as waqfs to the Delhi Waqf Board. Again, a Rev.P. No.242/2017 in W.P.(C)No.7955/2015 Page 10 of 75 completely incomplete list has been placed before us. The review petitioner does not point out with any clarity as to where the subject property under dispute in the present petition features in these lists.

12. It is important to note that these notifications do not either recognize or refer to or record the names of any private persons as any “mutawalli” with record to the properties mentioned therein.

13. No other notification is placed before us which could create any right, title or interest in any portion of the triangular park in favour of the review petitioners.

14. It appears that a challenge was laid to the transfer of the properties to the Waqf Board by the Union of India, by way of W.P.(C)No.1512/1984, Indraprastha Vishwa Hindu Parishad v. Union of India. In this writ petition, an order dated 1st of June 1984 was passed stating that status quo regarding the properties should be maintained and possession should be retained by the Government. It was further directed that if lease deeds have not been executed, these should not be executed. Copy of this order has been placed before us along with CM No.18177/2016 whereby the Jamia Arabia Nizamia Welfare Education Society has sought impleadment.

15. On the 5th of March 2014, the Government of India issued a notification under Section 93 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (30 of 2013) withdrawing from acquisition 123 Waqf properties, which had been under the control of the Land and Rev.P. No.242/2017 in W.P.(C)No.7955/2015 Page 11 of 75 Development Office. We are unable to discern herein any reference to the property which is the subject matter of the writ petition. However, in the list of the properties under the caption “Properties of Land and Development Office”, Sr.Nos.40 and 41 read as follows : “ Properties of Land and Development Office xxx xxx xxx 40.

41. 13/2, Muslim Graveyard, Village Aliganj, opposite Southern Gate of Dargah Nizamuddin Aulia alongside Lodhi Road. 19/2, Muslim Graveyard, Village Aliganj alongwith Link Road.” There is no clarity as to which graveyard is referred to above. Orders in litigation regarding the Amir Khusro Park which have to be complied with 16. It appears that the Delhi Waqf Board had filed Suit No.4/1980, Delhi Wakf Board v. Mohd. Yusuf and Mohd. Yunus and 11 others seeking possession, rendition of accounts and perpetual injunction restraining the defendants to put up hoardings or allow any person holding in any portion of the portion A, B and C and that the land A, B and C as shown in the land, measuring about 60 bighas, which was a graveyard, comprising of two khanka, a mosque and a grave used for burial place for Muslim dead bodies since time immemorial. The Delhi Waqf Board was relying upon the provisions of Section 14 of Rev.P. No.242/2017 in W.P.(C)No.7955/2015 Page 12 of 75 the Waqf Act, 1954.

17. Ld. counsels for the parties have placed the orders in previous litigations before us which we refer hereunder : (i) Orders dated 1st June, 1984 in WP(C)No.1512/1984, Indraprastha Vishwa Hindu Perishad & Ors. v. UOI & Ors. made absolute on 7th January, 1985. (ii) Order dated 12th January, 2011 in WP(C)No.1512/1984, Indraprastha Vishwa Hindu Perishad & Ors. v. UOI & Ors. (iii) Order dated 12th January, 2011 in W.P.(C)No.3927/2010, Jamia Arabia Nizamia Welfare Educational Society vs. Delhi Wakf Board & Ors. (iv) Order dated 19th October, 2015 in WP(C)No.7955/2015, Savyasachi K Sahai vs. UOI & Ors. (v) Order dated 24th February, 2016 in WP(C)No.7955/2015, Savyasachi K Sahai vs. UOI & Ors.

18. Despite and after the orders of status quo in W.P.(C)No.1512/1984, encroachments took place in the Amir Khusro Park/Tikona Graveyard.

19. We extract hereunder the orders passed by this court regarding the unfortunate happenings on this valuable property : (i) Orders in W.P.(C)No.1512/1984, Indraprastha Vishwa Hindu Perishad & Ors. v. UOI & Ors. : (a) Order dated 26th August, 2010 (Bench comprising Chief Rev.P. No.242/2017 in W.P.(C)No.7955/2015 Page 13 of 75 Justice and Manmohan, JJ.): “Mr. Parag P. Thripati, learned Additional Solicitor General has submitted that the Union of India is likely to take a policy decision within a period of four weeks. It is submitted by him that if a policy decision comes then there would be a possibility that the controversy may be put to rest. Be that as it may, if a policy comes into existence, there can be debate in that regard on the next date of hearing. List on 6th October, 2010.” (b) Order dated 6th October, 2010 (Bench comprising Chief Justice and Manmohan, JJ.) : “It is submitted by learned ASG that parties concerned are looking into the matter. In view of the aforesaid, as prayed, matter be listed on 19.1.2011. Counsel for the petitioner has no objection.” (c) Order dated 12th January, 2011 (Bench comprising Chief Justice and Sanjiv Khanna, JJ.): “6. On perusal of the orders passed and the stand taken, we are of the considered opinion that the Union of India is required to consider the matter. Let the Union of India re- look at the matter and take a decision within six months form today. Till then, the interim order passed by this Court on 1st June, 1984 shall remain in force. Needless to say when we have directed that the Union of India shall have a fresh look into the matter, it shall keep in view the law in praesenti and the factual position. All other issues and contentions are left open. Rev.P. No.242/2017 in W.P.(C)No.7955/2015 Page 14 of 75 With the aforesaid direction, the writ petition stands disposed of.” (ii) Order dated 5th September, 2011 on CM No.13013/2011 in W.P.(C)No.1512/1984, Indraprastha Vishwa Hindu Perishad & Ors. v. UOI & Ors. (Bench comprising Chief Justice and Sanjiv Khanna, JJ.) : “CM No.13012/2011 This is an application for extension of time by the Union of India. Regard being had to the assertions made in the application, time is extended till end of October, 2011. After the order is complied, a copy of the order shall be supplied the petitioner. It is hereby made clear that no further extension shall be granted. The application is, accordingly, disposed of.” learned counsel for to the (iii) Order dated 9th September, 2015 in Cont.Cas.No.519/2012, Jamia Arabia Nizamia Welfare v. TR Prasad & Ors. (Bench comprising Manmohan, J.): “Ms. Monika Arora, learned standing counsel for respondent nos. 1 to 3 is permitted to file an additional affidavit within two weeks. List on 15th January, 2016. In the meantime, the Deputy L&DO shall ensure that no further unauthorised construction and/or illegal Rev.P. No.242/2017 in W.P.(C)No.7955/2015 Page 15 of 75 encroachment takes place in the area in question. To ensure the aforesaid, whatever measures have to be taken by the Deputy L&DO shall be put in place forthwith.” (iv) Order dated 26th February, 2007 in W.P.(C)No.1451/2007, Jamia Arabia Nizamia Welfare Education v. Delhi Wakf Board & Anr. (Bench comprising Badar Durrez Ahmed, J.) : “In the present petition, the grievance is with regard to an old monument which is supposed to be over 500 years old. The photograph of the same is placed at page 9 of the paper book. The said monument is adjacent to Delhi Public School, Mathura Road, New Delhi and is situated at Khasra No.484. The petitioner claims itself to be a registered society looking after the affairs of the Masjid and Madarsa which is located in the same Khasra. This claim of the petitioner is disputed by Mr. Waziri, who appears on behalf of the Wakf Board. It is made clear that the order that is being passed in this matter does not in any way recognise the status of the petitioner as a society lawfully entrusted with the management of the Mosque or the Madarsa. However, directions are being passed because the property in question is admittedly Wakf property over which the Wakf Board exercises superintendence and Mr. Waziri, who appears for the Wakf Board has assured this court that if there are any encroachments and unauthorized occupants in the said premises then the Wakf Board shall take appropriate action in terms of the provisions of the Wakf Act, 1995 for removing any such encroachment/unauthorised occupants. In view of this statement made by Mr. Waziri, no further direction is necessary in this petition. The writ petition stands disposed of.” Rev.P. No.242/2017 in W.P.(C)No.7955/2015 Page 16 of 75 20. Regarding these encroachments, this court in WP(C)No.3927/2010 Jamia Arabia Nizamia Welfare Educational Society vs. Delhi Wakf Board, speaking through a Bench of the Chief Justice and Sanjiv Khanna, JJ., on the 12th of January 2011, specifically directed as follows : for removal steps appropriate “2. We have been apprised by Mr. Rakesh Tiku, learned senior counsel for the petitioner that the encroachment should be removed. In view of the decision pronounced in Writ Petition (Civil) No.1512/1984, the Union of India shall take of unauthorized encroachment and unauthorized construction as the same taken place in violation of the order passed by this Court in the year 1984. Needless to say, when we have said unauthorized construction or encroachment ought to be removed it is obligatory on the part of the Union of India that no person makes any kind of unauthorized construction or encroachment. It needs no special emphasis to state that if the petitioner is aggrieved by an action of the Union of India, it can approach the appropriate legal forum as advised in law. In view of the aforesaid, we direct the Union of India 3. to proceed against the persons, who have unauthorisedly constructed and encroached on the land in question, in accordance with law.” (Emphasis supplied) 21. Thereafter, the present writ petition (W.P.(C)No.7955/2015) was filed by the writ petitioner seeking a mandamus to the respondent Rev.P. No.242/2017 in W.P.(C)No.7955/2015 Page 17 of 75 nos.2 to 4 to take appropriate steps and action against the illegal encroachments and unauthorised constructions inside and around Amir Khusro Park.

22. On the 19th of October 2015, this court noted the status report filed by the respondent no.6 SHO Nizamuddin Police Station for assistance in removing the encroachments in the Amir Khusro Park. We extract hereunder paras 5 to 8 of the order dated 19th October, 2015 which read as follows : “5. Respondent No.2/ DDA in its status report has pointed out that the plot in question measuring 12.8 acres was allotted by L&DO Department on 05.01.1972 for the purpose of developing and maintaining the same as Green Land. Since then, as per terms of allotment, the Horticulture Division of respondent No.2/DDA is maintaining the same. Status report admits that the same has been illegally encroached upon in the shape of several Jhuggi Jhopries which are illegally constructed in the Park. Garbage and malba is also dumped inside the Park. It is further stated that the condition of the Park has deteriorated and any attempt to carry out the work of cleaning is objected to by the local residents illegally residing in the Park who create hindrance in execution of the cleaning work. It is urged that letters were sent to the concerned Police Station to take action against the illegal encroachers on the government land, but no steps have been taken by the Police and no Police protection is being provided.

6. The two status reports make it clear that the two authorities are passing the blame on each other. A serious problem of unauthorised and illegal encroachments on govt. land exists. There is apprehension of law and order problem. Rev.P. No.242/2017 in W.P.(C)No.7955/2015 Page 18 of 75 7. In the light of the above, it is necessary for the respondents to take immediate action for removing encroachments and illegal construction inside the Park.

8. We therefore, issue the following directions: i) The concerned Chief Engineer (or equivalent officer) of DDA in consultation with the concerned Police DCP of the area, shall fix an appropriate date for removing of all unauthorised encroachments and illegal constructions inside the Park. The needful will be done within three months from today. ii) The Police will provide all necessary protection for carrying the task by respondent No.2/DDA. iii) After necessary task is accomplished, respondent No.2/DDA shall carry out appropriate measures to ensure that the unauthorised construction and land grabbing in any form is not repeated again. If necessary, appropriate wall or fencing shall be constructed/installed to protect the land. iv) There is a specific reference in the status report of the Police to a Rain Basera stated to have been constructed by Shakti Shalini NGO. The exact status of this Rain Basera is not stated in the status report, i.e. as to whether it is set up with the prior permission of the concerned authority or not. If the same has a valid subsisting permission from the concerned authority, then only it will not be subjected to any coercive step as envisaged in the order as above.” (Emphasis by us) 23. Our attention has been again drawn to the order dated 24th Rev.P. No.242/2017 in W.P.(C)No.7955/2015 Page 19 of 75 February, 2016 in the present writ petition wherein the court noted that the above directions made on 19th October, 2015 have not been complied with. We extract hereunder paras 3 to 6 of the order passed by this court (Chief Justice and Jayant Nath, JJ.) on the 24th of February 2016 which read thus : “3. Mr.Sanjeev Sabharwal, the learned Standing Counsel appearing for the DDA states that the needful could not be done inadvertently and the needful will be done within four weeks.

4. The Delhi Police had filed a status report. In the status report, it is stated that a copy of the communication which is addressed the Joint Commissioner of Police dated 26.10.2015 has also been sent to DDA. However, it is urged that the DDA has taken no steps to seek police protection for appropriate action in the matter. Relevant portion of the communication written to the DDA reads as follows: to “In this connection, it is submitted that large chunk of land is lying vacant opposite Basti Hazrat Niazamuddin at Lala Lajpat Rai Marg, which is popularly known as Amir Khusro Park, Hazrat Nizamuddin, New Delhi. Since, the said land is lying vacant, vagabonds staying in the area used to put jhuggies on the said area. Round the clock, staff has been deployed in Amir Khusro Park. However, these vagabonds used to encroach space by first putting tarpaulin and then putting Bamboo sticks at odd hours to be used for stay and starts living therein. Time to time efforts were made to remove the encroachments at our own, but due to strong protest of residents, no fruitful result came out as they put forward their females and also throw children in front of the police party. Rev.P. No.242/2017 in W.P.(C)No.7955/2015 Page 20 of 75 It has also come to the notice that one Baba Firozuddin, who is running a grocery shop in the said area is doing encroachment in a well planned manner through his family members and collecting money from outsiders for providing them space for putting jhuggies on the said land. To put pressure on local police, recently Baba Firozuddin also filed a writ petition against the SHO/H.N. Din with the allegations that SHO/H.N. Din is forcibly removing the jhuggies. However, the same was dismissed by the Hon’ble Delhi High Court. …… the There is strong apprehension that there can be a major law and order problem in future at the time of removal of these jhuggi residents as some anti social elements have also started to live there, who used to do various crimes like robbery, snatching, burglary etc. localities. Recently, clashes also took place between different groups for construction of jhuggies and cross cases were also registered. The several intimations have been sent to DDA authority at police station level to protect the area by way of putting wall or deployment of guards to keep a check on unauthorised encroachment. This office has also written to the Deputy Director (LM), DDA, Vikas Sadan, New Delhi vide this office memo/letter No.10997/HAX(AC-III)/SED, dated 17.04.2015 (Annexure-A).” in nearly The above report shows the urgent need to take steps as directed by this Court on 19.10.2015.

5. We are not satisfied with the explanation given by the DDA the order dated 19.10.2015. However, in the interest of justice, as requested by the learned counsel appearing for the DDA, we grant its non-compliance with for Rev.P. No.242/2017 in W.P.(C)No.7955/2015 Page 21 of 75 another one month period to DDA to comply with the previous order of this Court dated 19.10.2015.

6. Call on 30.03.2016. The concerned Chief Engineer, DDA and the concerned Deputy Commissioner of Police shall remain present in person in Court on that date.” (Emphasis supplied) It is noteworthy that the review petitioner has made no 24. grievance with regard to the above order dated 12th January, 2011 in W.P.(C)No.3927/2010; orders dated 19th October, 2015 and 24th February, 2016 passed in the present writ petition. Despite knowledge of the orders of the courts and action of the police and DDA as noted above, the writ petitioners have admittedly contumaciously flouted the same.

25. The writ petition thereafter was listed on 19th April 2017 when the non-compliance with the previous orders was noted and it was directed as follows : “2. …We are informed by Mr. Sanjeev Sabharwal, learned standing counsel for the DDA that despite best efforts, police assistance has not been made available. This is disputed by Mr. Satyakam, learned additional standing counsel for the police. Despite the divergence on this aspect, both learned standing counsels submit that the orders of this court have to be strictly complied with.

3. It cannot be denied that encroachment and trespass cannot be permitted, least of all permitted to continue in perpetuity. The aspect of non-compliance of the specific Rev.P. No.242/2017 in W.P.(C)No.7955/2015 Page 22 of 75 directions of this court is an even more serious matter and is liable to render the concerned officers to appropriate action under the Contempt of Courts Act, 1971.

4. On request of the learned standing counsels for the Delhi Development Authority and the Delhi Police, they are permitted time of three weeks to comply with the directions made on 19th October, 2015. A report to this effect shall be filed before this court on 22nd May, 2017.” (Emphasis supplied) 26. It is noteworthy that on the 28th of March, 2017, the review petitioner filed CM No.13164/2017 inter alia seeking directions against the respondents to take appropriate steps against the demolition of the boundary wall which had been constructed by the respondents to avoid further illegal encroachments and unauthorized constructions in the park and a further direction to the respondents to cover the entire boundary wall by putting iron fence on the boundary wall to control illegal encroachment. Notice was issued on this application as well on 19th April, 2017.

27. It was at this stage, that the review petitioners filed CM No.18595/2017 seeking impleadment under Order I Rule 10 of the CPC accompanied by CM No.18596/2017 seeking a direction to the respondents to defer the demolition till the next date of hearing. This application was premised on the plea that the applicants and their family were residing in the bounded area of the masjid and the dargah.

28. On 16th May, 2017, we had noted the submission of the Rev.P. No.242/2017 in W.P.(C)No.7955/2015 Page 23 of 75 Standing Counsel for the Delhi Development Authority that out of the total tikona park, which as per the petitioner was measuring 12.08 acres, a small portion of the property is old construction and that the same is “not the subject matter of demolition”. We also noted that there was unauthorised construction which had been raised after 2015. The order dated 12th January, 2011 passed in W.P.(C)No.3927/2010 as well as the earlier decision in W.P.(C)No.1512/1984 were placed before us and were noted by us.

29. Upon the examination of the photographs, we found that the photographs relied upon by the review petitioners were showing brand new constructions which had been freshly painted and newly tiled which were not old constructions. On 16th May, 2017, it was also noted that the photographs placed with the application did not show the correct or the complete position. We had noted the position placed by the applicant in CM No.18595/2017 which was in the following terms : “9. In para 3 of CM No.18595/2017, a bald assertion of “since their ancestors” and “in a portion of the park” is made without any specifications. The applications mention not a single date of construction or occupancy. No details of occupation are mentioned. Not a whit of right or title or interest of the applicant in the subject property is mentioned. There is no document to support even the occupancy.” 30. The photographs actually show that completely unauthorized and illegal structures have come up even on the pavements alongside Rev.P. No.242/2017 in W.P.(C)No.7955/2015 Page 24 of 75 the main road which are obstructing the right of way and cannot be permitted.

31. Along with the review petition, a site plan has been placed on record showing the old structures. In the site plan, certain structures are shown encircled in red which have been clearly referred to as disputed structures. The notification of 1970 or thereafter make no mention of such structures. Therefore, these structures cannot be maintained.

32. Conscious of the need to ensure that the old constructions, which were the subject matter of the notifications of the Government of India, had to be protected, in paras 10 and 11 of the order dated 16th May, 2017, we had directed as follows : “10. The respondents shall strictly ensure that no old construction is demolished.

11. Let a status report in this regard be placed before us tomorrow i.e. on 17th May, 2017.” 33. On the 17th of May 2017, we were informed by the counsels for the official respondents as follows : “Mr.Sanjiv Sabharwal, learned counsel for the DDA submits on instructions from Mr.Sunder Lal, Deputy Director (South East) of land management, DDA that demolition action is being carried out on the site. He states that gross illegal activities viz. workshop of airconditioner/car repair, parking of e-rikshaws’, against payment and even real estate transactions were being undertaken on the Government land. Rev.P. No.242/2017 in W.P.(C)No.7955/2015 Page 25 of 75 Mr.Avinash, learned counsel appearing the applicants submits that the applicants may be permitted to remove their belongings from the spot in question. The concerned authorities, the applicants to remove their belongings which shall be positively be removed within two days from today. if approached, shall permit for It is made clear that we have not granted any stay of the demolition action. Status report be filed before the next date of hearing. List on 22nd May, 2017. Dasti to parties.” 34. Thereafter, a newspaper report which appeared at page 7 of the Saturday’s Edition of Times of India dated 20th May, 2017 was brought to our notice which compelled this court to call upon the matter for urgent listing on the same day i.e. Saturday the 20th of May 2017 when this court recorded the following order : “ 1. The newspaper report captioned as “Home razed, they are back on streets” at page 7 of today’s edition The Times of India was brought to our notice compelling us to make a direction for urgent listing of this matter today.

2. The newspaper report suggests that pursuant to court order, demolition has been effected of a night shelter in Nizamuddin causing displacement of 100 people and rendering them shelter less.

3. While hearing WP(C)No.4417/2017, Sunil Kumar Aledia vs. Government of NCT of Delhi filed by certain persons Rev.P. No.242/2017 in W.P.(C)No.7955/2015 Page 26 of 75 for claiming to have been occupying a night shelter in Amir Khusro Park, we had noted the submissions made by Mr. Satyakam, Additional Standing counsel of the GNCTD, Mr. Parvinder Chauhan, Standing Counsel for DUSIB and Mr. Sanjeev Sabharwal, Standing Counsel the Delhi Development Authority to the effect that there were three night shelters in close proximity of the Amir Khusro Park, Delhi and that the persons who were using the night shelter in the Amir Khusro Park, Delhi were being accommodated in a nearby night shelter.

4. We are further informed by Mr. Satyakam, Additional Standing counsel for GNCTD that this Amir Khusro Park night shelter was being used as night shelter only by few women and their children, who desired to be placed close to the Amir Khusro Park area.

5. Mr. Parvinder Chauhan, Standing Counsel for DUSIB confirms this position and informs us that the children were going to schools in the neightbourhood area, for this reason, the women and children who were using the Amir Khusro Park shelter have been accommodated in the night shelter which is near the Hazrat Nizamuddin Auliya Dargah which had extra space still available.

6. A very unfortunate part of the newspaper report is pointed out by ld. Standing Counsels as projected in the newspaper. The report includes a picture of a man and an infant child sleeping in the open. This picture does not relate to inmates of the night shelter for the obvious reason that the night shelter in question was being used for women and children. It is pointed out that therefore, the picture of sleeping man is deliberate act to mislead the public and create a wrong impression against the court and the statutory authorities. Rev.P. No.242/2017 in W.P.(C)No.7955/2015 Page 27 of 75 7. The Government of NCT of Delhi shall inform this court also as to why steps are not being taken to ensure that adequate shelters are provided to all the homeless in Delhi and how green belts can be converted into shelter homes in violation of the law.

8. We may note that Inspector Jarnail Singh, SHO Hazrat Nizamuddin; Mr. Arun Kumar Singh, Deputy Director DUSIB and Assistant Director Shyam bijay (Horticulture) of the DDA are present today before us.

9. In order to confirm that adequate shelter has been made available to the erstwhile occupants of the demolished Amir Khusro Park night shelter from the demolished shelter home, we appoint Mr. Lorren Bamniyal, Registrar (Appellate) as amicus curiae to conduct a spot inspection today itself and submit a report to this court.

10. The Local Commissioner shall be accompanied by counsel for the parties. The Local Commissioner shall visit the spot today itself and submit report to this court.

11. Inspector Jarnail Singh, SHO PS Hazrat Nizamuddin shall ensure adequate security to the Local Commissioner and the team of lawyers.

12. Let photographs of the shelter home where the occupants have been accommodated and facilities made available be taken by the Local Commissioner and placed before us. The respondents shall make available the photographer and bear its expenses.

13. Mr. Satyakam informs us that the Supreme Court was approached by a party regarding some other constructions in the Amir Khusro Park who has been given liberty to seek Rev.P. No.242/2017 in W.P.(C)No.7955/2015 Page 28 of 75 in the order dated 16th May, 2017 review of WP(C)No.7955/2015 from this court.

14. We have taken up only the matter of the occupants of the night shelter on account of the urgency noted above in the matter. We are not awaiting the filing of the review petition but have issued the above directions in respect of the occupants of the night shelter. List on 22nd May, 2017. Dasti under signature of court master.” 35. On 22nd of May, 2017, orders were passed by us premised on the report of the Local Commissioner dated 22nd May, 2017, with regard to the rehabilitation of the persons who were occupying the temporary night shelter which had been permitted to come up in the Amir Khusro Park. It has been ensured that all such bona fide occupants stand fully rehabilitated.

36. It appears that the review petitioners had in the meantime, assailed our order dated 16th May, 2017 before the Supreme Court of India by way of a Special Leave Petition diarized vide no.16022/2017 which was withdrawn with liberty to file the present review petition. No such review was filed even till 24th of May 2017 when we had recorded the following : “1. Pursuant to the last order, we are informed by Mr. Ajjay Aroraa, for South Delhi Municipal Corporation that a meeting took place between the Commissioner, ld. Standing Counsel Rev.P. No.242/2017 in W.P.(C)No.7955/2015 Page 29 of 75 SDMC and the CEO of DUSIB on the 23rd of May 2017 and all efforts are underway so that there is no inconvenience to the persons who stand relocated from the earlier shelter home.

2. We are informed that the women and the children are being lodged on the first floor of the night shelter, which has been assigned serial No.10. We are informed that so far as male users of the night shelter are concerned, DUSIB is raising temporary structures on the terrace and ensuring every facility therein.

3. The DUSIB shall ensure that this is only a temporary measure and that the male occupants are at the earliest suitably accommodated at a night shelter, which is close by.

4. Inspector Jarnail Singh, SHO, PS Hazrat Nizamuddin shall assist the other authorities in carrying out these measures.

5. We are informed by ld. counsels for the authorities that after our order dated 16th May, 2017, extensive demolition action for removing encroachments in the Amir Khusro Park was effected. Our order dated 17th May, 2017 (passed in WP(C)No.7955/2015) notes the information given on behalf of the authorities that demolition was underway. The order dated 17th May, 2017 also records the request as a consequence made on behalf of certain persons for permission to remove their belongings from the spot, which was permitted.

6. in WP(C)No.4417/2017 show that rehabilitation of displaced persons which included encroachers has also been closely monitored by this court. In fact suo motu cognizance of a newspaper report was taken and an urgent sitting held on 19th May, dated The orders 2017 Rev.P. No.242/2017 in W.P.(C)No.7955/2015 Page 30 of 75 Saturday the 20th May, 2017. A Senior Registrar of the Court was appointed as Local Commissioner to ascertain the well being of persons who claimed earlier occupancies. His detailed report is before us. The position disclosed therein is not disputed.

7. Mr. Syed Hasan Isfahani, ld. counsel for applicant in CM Nos.18595-596/2017 in WP(C)No.7955/2015 submits that a Special Leave Petition which was diarized vide D.No.16022/2017 was filed assailing order dated 16th May, 2017 in CM Nos.18595-596/2017 in WP(C)No.7955/2015. He submits that the Supreme Court has directed that status quo shall be maintained for a period of two weeks to enable the petitioner to approach the High Court. The said order of the Supreme Court is extracted hereinbelow : that “Mr. Siddharth Dave, learned counsel appearing for the petitioners submits there are certain structures which are appurtenant to the Masjid and Dargah Musafir Shah situated at Amir Khusro Park, Lala Lajpal Rai Marg, New Delhi in which the mutawalli and his family (petitioners herein) are residing peacefully and managing the Dargah for a long time. He also refers to the application(s) for impleadment and directions that he has filed before the High Court in which he has asserted this submission. He states that the said point was not considered by the High Court. Accordingly, learned counsel appearing for the petitioners prays for liberty to withdraw the present Special Leave Petitions and instead move the High Court for review of the order. Liberty, as prayed, is granted. The petitioners will be at liberty to move this court once again if the order in the review is adverse to them. The Special Leave Petitions are accordingly closed on withdrawal with liberty as aforesaid. We also request the High Court to Rev.P. No.242/2017 in W.P.(C)No.7955/2015 Page 31 of 75 entertain an application for review to be filed by the petitioners. In the meanwhile, status quo, as it exists today, shall be maintained for a period of two weeks to enable the petitioners to approach the High Court. above terms.” The special leave petitions are disposed of in the (Emphasis supplied) The period of two weeks is expiring on 2nd June, 2017. No application has been filed till date.

8. We have queried Mr. Syed Hasan Isfahani, ld. counsel for the applicants in CM Nos.18595-596/2017, to inform this court with regard to the property which is the subject matter of the special leave petition (diarized vide D.No.16022/2017) before the Supreme Court of India. However, Mr. Isfahani is unable to inform this court about the same or the status thereof. Despite the liberty granted by the Court, no application in this regard has been filed before us till date. No copy of the Special Leave Petition, which was filed in the Supreme Court of India has been placed before us.

9. Mr. Sanjeev Sabharwal, ld. Standing Counsel for the DDA has handed over an information conveyed to an applicant, Shri A.K. Khan (under the RTI Act) by the Ministry of Urban Development. The same reads as follow: “A triangular piece of land bounded by Lala Lajpat Rai Marg, Lodhi Road and Mathura Road was allotted to DDA in 1972 as green. Hence at present the land is with DDA” 10. Mr. Sanjeev Sabharwal, ld. Standing Counsel for the Rev.P. No.242/2017 in W.P.(C)No.7955/2015 Page 32 of 75 DDA has handed over a file containing the photographs of the demolished properties in the Amir Khusro Park and only a sparkling new structure remains at the spot. This structure is also not residential.

11. It is agreed by all the counsels who are present today before us that the law, including the provisions of the DDA Act; Statutory Master Plan; Delhi Municipal Corporation Act as well as the Government notifications have to be strictly complied with. The ld. counsel for the applicants has agreed that no new structures can be protected or saved under any statutory provision or notification.

12. The Amir Khusro Park is in close proximity to the Humayun’s Tomb, a UNESCO Heritage site and the Hazrat Nizamuddin Auliya Dargah. It is a Master Plan green meant for use by the residents of the Nizamuddin area and the thousands of visitors to the Monument and Dargah visit the spot.

13. It requires to be noted that this small park is a triangular island bounded by busiest traffic roads that is the Mathura Road, (opposite Delhi Public School), Lodhi Road (between Golf Links and Nizamuddin) and the Lala Lajpat Rai (connecting South Delhi to India Gate). As such no habitation can exist within this park because of the safety concerns and lack of access on account of the unending and constant traffic.

14. is being made by unscrupulous elements to encroach on public land and depriving the public and visitors to the Hazrat Nizamuddin Auliya Dargah as well as the Humayun Tomb, the benefit of the park, an oasis in the middle of a brick and concrete jungle which the area has become. that an effort It appears Rev.P. No.242/2017 in W.P.(C)No.7955/2015 Page 33 of 75 15. Our order dated 16th May, 2017 duly notes the nature of encroachments as follows: “9. In para 3 of CM No.18595/2017, a bald assertion of “since their ancestors” and “in a portion of the park” is made without any specifications. The applications mention not a single date of construction or occupancy. No details of occupation are mentioned. Not a whit of right or title or interest of the applicant in the subject property is mentioned. There is no document to support even the occupancy.

10. The respondents shall strictly ensure that no old construction is demolished.” out in CM16 No provisions of water and electricity connections are pointed Nos.18595-596/2017 (WP(C)No.7955/2017) by ld. counsel for the applicants. No document in support of the pleas is enclosed. According to the authorities, the site is a park.

17. No sewage facilities have also been pointed out without which habitation would be impossible. It is legally impermissible.

18. Mr. Syed Hasan Isfahani, ld. counsel for applicants in CM Nos.18595-596/2017 in WP(C)No.7955/2017 was also present before us when we listed the matter earlier and is present even today without any instructions.

19. It needs no elaboration that the order passed by the Supreme Court is required to be strictly followed. The above extract would show that new encroachments were not within the purview of the Supreme Court proceedings. The Rev.P. No.242/2017 in W.P.(C)No.7955/2015 Page 34 of 75 respondents shall, therefore, ensure that with regard to any old structures, if existing on the spot, which are the subject matter of the order dated 19th May, 2017 passed by the Supreme Court of India, status quo as obtained, is maintained.

20. In view thereof, while taking action as directed, the DDA shall strictly abide by the order of the Supreme Court regarding removal of any remaining new structure in the Amir Khusro Park. The DDA shall maintain a videography of the action which is taken.

21. No new structure or encroachment shall be permitted to in the Amir Khusro Park, Delhi by the respondents.

22. Inspector Jarnail Singh, SHO, PS Hazrat Nizamuddin shall render full assistance to the DDA in ensuring that the law is complied with.

23. The respondents shall ensure that the Amir Khusro Park is further preserved, developed and maintained as a park.” (Emphasis by us) The above statements on behalf of the review petitioners completely preclude the stand now pressed in the review.

37. Other applications being CM Nos.20502-03/2017 came up on 25th of May 2017 wherein notice was issued. On this date, we had recorded the following position as subsisting on the spot : Rev.P. No.242/2017 in W.P.(C)No.7955/2015 Page 35 of 75 “CM Nos.20502-20503/2017 xxx xxx xxx 3. It is submitted by Mr. Sabharwal that he may be permitted to file a status report inasmuch as photographs enclosed with the application do not depict the correct picture and that they relate to new structures which have been the subject matter of the recent demolition action.

4. demolition has taken place.

5.

6. parties within one day. Let a copy of this application be furnished to all other This position is not disputed by the applicant that the Let a status report be filed by the respondents.

38. The present review petition has been filed thereafter and listed before us only on the 30th of May 2017 when notice was issued and accepted by the other side.

39. By our order dated 30th May, 2017, the Delhi Development Authority has been directed to remove the malba from the spot : “W.P.(C)7955/2015 xxx xxx xxx 11. In the meantime, keeping in view the ensuing rains and the onslaught of monsoon as well as the diseases which may result if the malba and garbage is left lying on the ground, the DDA shall forthwith remove the malba.” (Emphasis by us) 40. It is noteworthy that in the meantime, the Delhi Wakf Board has sought impleadment by way of CM No.15772/2016. The Delhi Wakf Rev.P. No.242/2017 in W.P.(C)No.7955/2015 Page 36 of 75 Board has disputed the entitlement of the review petitioner on the subject land contending that the tikona Kabristan (Graveyard) stands notified as a Wakf property in the notification issued by the Delhi Administration dated 31st December, 1970 at Sr. No.231. This application was allowed by us by the order dated 30th of May 2017. Yet another application being CM No.20502/2017 has been filed by Shri Abdul Khalid Sultani as a descendent of Shafiq Mia seeking impleadment and CM No.20503/2017 has been filed for directions in which after issuing notice, time has been given to file replies. These applications were directed to be listed on 24th of July 2017.

41. In the aforesaid W.P.(C)No.2901/2014, Indraprastha Vishwa Hindu Parishad v. Union of India, on 12th January, 2011, after noting that the writ petition would be treated as a representation and the decision taken thereon, after granting opportunity of hearing to all the stakeholders including the Delhi Waqf Board, it was directed that “till such time, status quo obtaining as on today with regard to the possession of the land in question shall be maintained”. The writ petition was disposed of. Whether the review petitioners make out that they are “mutawallis” of the property?.

42. Mr. U. Hazarika, ld. Senior Counsel arguing for the review petitioners has pressed the locus standi of the review petitioners to intervene in the present writ petition premised on their claim of title Rev.P. No.242/2017 in W.P.(C)No.7955/2015 Page 37 of 75 and entitlement to the land.

43. The review petitioners have asserted that their predecessor-in- interest i.e. their father “was appointed as a mutawalli/caretaker of the dargah by the predecessor mutawalli”. Let us now examine as to how the review petitioner seeks to establish the claim of the predecessor mutawalli.

44. A “mutawalli” is statutorily described under the provisions of Section 3(i) of the Wakf Act, 1995 in the following terms : “3. Definitions.—In this Act, unless the context otherwise requires,— xxx xxx xxx (i) “mutawalli” means any person appointed, either verbally or under any deed or instrument by which a wakf has been created, or by a competent authority, to be the mutawalli of a wakf and includes any person who is a mutawalli of a wakf by virtue of any custom or who is a naib-mutawalli, khadim, mujawar, sajjadanashin, amin or other person appointed by a mutawalli to perform the duties of a mutawalli and save as otherwise provided in this Act, any person, committee or corporation for the time being managing or administering any wakf or wakf property: Provided that no member of a committee or corporation shall be deemed to be a mutawalli unless such member is an office bearer of such committee or corporation”. It is therefore, apparent that a mutawalli has to be appointed, 45. “either verbally or in deed or instrument by which a wakf has been created, or by a competent authority” to be a mutawalli of a wakf. It also includes a person who is a mutawalli of a wakf by virtue of any Rev.P. No.242/2017 in W.P.(C)No.7955/2015 Page 38 of 75 custom.

46. By the order dated 6th of October 1981, in Suit No.4/1980, the trial court decided an application under Order XL of the CPC for appointment of a receiver in Suit No.4/1980. It is relevant for our consideration to the extent that it notes the claim set up by Mohd. Yusuf and Mohd. Yunus, the predecessors-in-interest of the review petitioners. They even disputed the existence of a graveyard on the subject land.

47. The review petitioners have claimed to be the sons and successors of Mohd. Yusuf and Mohd. Yunus. These two persons were arrayed as the defendant nos.1 and 2 in Suit No.4/1980 filed by the Delhi Waqf Board. The petitioners claim under their fathers and therefore, can claim no better title than was asserted by their claimed predecessors-in-interest. The adjudication on the claimed rights of Mohd. Yusuf and Mohd. Yunus with regard to the subject property would bind the review petitioners as well.

48. We therefore note the defence set up by Mohd. Yusuf and Mohd. Yunus (as defendant nos.1 and 2 in Suit No.4/1980) set out in para 3 of the order dated 6th October, 1981 which was to the following effect : “3. Defendant Nos. 1 and 2 filed reply of the application moved by the plaintiff referred above and alleged that the suit is time barred, that the plaintiff is not in possession of the property; that defendant nos. 1 and 2 have no concern with the alleged hoardings; that the application is mala fide Rev.P. No.242/2017 in W.P.(C)No.7955/2015 Page 39 of 75 and baseless and, therefore, deserved to be rejected, it is also alleged that it is not disputed that the property in suit is a graveyard. The accuracy of the plan 'A' is denied. It is denied that the property is suit was used a burial place since terms immemorial; that the finding of the Wakf Commissioner and the Gazettee Notification dated 21.12.70 in respect of the property in suit are not binding on defendant nos. 1 and 2; and the said notification is void, wrong, unjust, arbitrary and inaffective against the rights, title and interest of defendants No.1 and 2 in the property possessed by them and hence the validity of the said notification is denied; that defendant nos. 1 and 2 have no concern with the hoardings of defendant No.2 and it is denied that the defendant nos. 1 and 2 assisted in any way to defendant No.3 who allowed some people to put up hoardings in the suit property and that defendant nos. 1 and 2 have no concern with the alleged hoardings or its income.” (Emphasis supplied) 49. It is therefore, clear that Mohd. Yusuf and Mohd. Yunus never set up any plea or claim that they were managers of a mosque or dargahs nor claimed that they were mutawallis in the said property. In fact, Mohd. Yusuf and Mohd. Yunus did not even set up any plea that there was any construction in existence on the subject land, as has been claimed by the review petitioners.

50. The other document relied upon by the appellant before us is a photocopy of a document scribed in Urdu, the year whereof is not legible. This document purports to have been executed by Mst. Sayeda Begum wife of Abu-ul-Hassan. It claims that “she is the Rev.P. No.242/2017 in W.P.(C)No.7955/2015 Page 40 of 75 descendent of Ali Ahmed Khwaja Abu Hasan” who had been offering services at “mazaar sharif like cleaning, dusting up-keeping etc,” and further assisting with arrangements of annual Urs. It is claimed that this has been going on from the past many years and he had been cultivating the land from the past 87 years.

51. By the said deed of Will, Mst. Sayeda Begum bequeathed “all my property in favour of Mst. Qudarti Begum, who will be the sole owner and in possession of all my immovable and movable properties after my death”. This Will refers to “land to cultivate”. It is nobody’s case before us that any cultivation is or was going on.

52. As per the alleged deed of Will, Mst. Sayeda Begum’s predecessor was only offering services in the nature of cleaning, dusting, up-keeping etc. and making arrangements for the annual Urs. at Mazaar Sharif. Ali Ahmed Khwaja Abu Hasan had no interest, let alone bequeathable right, title or interest in the land or property which is the subject matter of the writ petition. The deed of Will wherefrom Qudrati Begum derives her title, also does not make any reference to her or her predecessor’s appointment as a mutawalli of the two dargahs or mosque and the land in question. We have been kept completely in dark as to how Mst. Sayeda Begum was the “descendant” of Ali Ahmed Khwaja Abu Hasan or how she inherited his estate. The deed of Will does not even disclose the relationship of Mst. Sayeda Begum with the beneficiary Mst. Qudrati Begum. It needs no elaboration that a person can bequeath only what right, title Rev.P. No.242/2017 in W.P.(C)No.7955/2015 Page 41 of 75 or interest he actually holds. There is not an iota of title of the subject land or the mosque or dargah in favour of Mst. Sayeda Begum. The deed of Will relied upon by the appellant is not worth the paper on which it is written.

53. Before us, Mr. U. Hazarika, ld. Senior Counsel for the review petitioners has urged that a General Power of Attorney dated 20th March, 1981 (registered on 12th October, 1982) was executed by one Smt. Qudrati Begum, widow of Master Mastoo Fida Husain aged about 85 years as its executant. By this General Power of Attorney, Smt. Qudrati Begum appointed her daughter Smt. Rabia Khatoon; sons Mohd. Yusuf and Mohd. Yunus as her attorneys. So far as the authorisation was concerned, the executant Qudrati Begum authorised the said attorneys to inter alia do the following acts in respect of Dargah Chitli Khanka : “GENERAL POWER OF ATTORNEY xxx xxx xxx ...to do the following acts and things in regard to the Dargah popularly known as Chitli Khangah and in regard to the land and properties attached thereto and for the purposes of the said Dargah Chitli Khangah. AND WHEREAS, the executants by virtue of her being the Mutwalli/Sajjada Nashin of the aforesaid Dargah and properties attached thereto in terms of the Will executed by Late Saeeda, the mother of the executants herein, hereby invest all her rights, title and interest in the said Dargah and in the properties and land attached thereto to the said Rev.P. No.242/2017 in W.P.(C)No.7955/2015 Page 42 of 75 attorneys to manage the said Dargah as before and also manage and properties attached for the purposes of the said dargah in her name and on her behalf. And Whereasm I, the and executants authorize the said attorneys jointly and severally to settle lands with the tenants and to grant lease and to collect rent and moneys under the proper receipts and to do all acts and things which are deemed necessary for the up keep and maintenance of the said dargah.” (Emphasis supplied) 54. Smt. Qudrati Begum claimed in this attorney that she was the mutwalli/sajjada Nashin of the Dargah Chitli Khanka and the properties attached thereto in terms of an alleged Will executed by Late Saeeda, her mother.

55. The attorneys were authorised to do all acts and deeds including signing or deeds of lease etc. qua the right, title and interest of the executants in the said property.

56. The typed copy of the General Power of Attorney has been placed before us is executed on a non-judicial stamp paper of the sum of rupees ten only. The same is not even a notarized document, let alone registered in accordance with law, given the powers which were sought to be vested therein. Therefore, neither of the two documents, i.e., the aforesaid Will and the General Power of Attorney have any sanctity in law.

57. Yet another important document has been placed before us Rev.P. No.242/2017 in W.P.(C)No.7955/2015 Page 43 of 75 which again establishes that the Delhi Wakf Board has been continuously decrying the action of the encroachers on the land. It appears that a notice dated 27th December, 2005 was issued by the Chief Executive Officer of the Delhi Wakf Board referring to misuser of land; induction of encroachers as well as unauthorised construction by Shamim Begum/Qaisar Jahan claiming to be both wives of Late Mohd. Yunus. These two ladies had sent a reply dated 3rd January, 2006 to the Delhi Wakf Board which has been placed before us. Even in this typed copy of the reply, it is stated as follows :

"...By virtue of a General Power of Attorney dated 20.3.1981 executed by late Smt. Qudrati Begum, mother in law of the undersigned, late Mohd. Yusuf, the husband of the undersigned had become the Mutwalli/Sajjadanashin of the aforesaid Dargah. It is submitted that after the death of the abovesaid Mohd Yusuf the undersigned alongwith all other legal heirs including the second wife of the above said Mohd. Yusuf named Smt. Qaisar Jahan are staying together in the Dargah and performing the same duty as my husband was performing i.e. the maintenance of the Dargah."

(Emphasis by us) 58. We have dealt with the General Power of Attorney dated 20th March, 1981 hereinabove and the legal impact thereof. There is no claim at all that Mohd. Yusuf was the mutawalli of the dargah. In fact, though the notice has not been placed before us but the tenor of the notice clearly refers to the falsity of the claim of Mohd. Yusuf and Rev.P. No.242/2017 in W.P.(C)No.7955/2015 Page 44 of 75 the heirs and his successors after his death.

59. The review petitioners have placed before us the notification dated 31st December, 1970 issued by the Delhi Administration which we have extracted above. The subject property has been described at Sr.No.1078 referring to the “Dargah Shah Firdaus, Dargah Musafir Shah with a wall type mosque.” There is no reference at all to any Dargah Chitli Khangah. Furthermore, the Government notification which is relied upon by the review petitioner describes the Delhi Wakf Board as the mutawalli of the wakf.

60. It is evident that neither Mohd. Yusuf nor Mohd. Yunus nor the applicants set up any specific plea of appointment of any ancestor as a mutawalli. No plea of customary vesting has been set up anywhere nor particulars thereof have been given. Even in the Will or General Power of Attorney, Smt. Qudrati Begum claims to be undertaking merely cleaning, dusting, up-keeping etc. at Mazaar Sharif and further arrangements for annual Urs. and claims to be “cultivating land”. Doing sewa or service or charity does not create any right, title or interest in a place of worship or a monument or a permanent structure.

61. The intent of the applicants is writ large on the face of the record and the documents placed before us. By virtue of the alleged General Power of Attorney, the review petitioner fraudulently claimed that their predecessors-in-interest were conferred the power to execute the lease deed, etc. that is to say, were authorized to rent out the property which is the subject matter of the writ petition. The recitals Rev.P. No.242/2017 in W.P.(C)No.7955/2015 Page 45 of 75 in the alleged General Power of Attorney and the powers vested therein, in fact manifest a calculated fraud to grab the public land.

62. The review petitioners have not pleaded any customary appointment of any ancestor or their predecessor-in-interest as a mutawalli of the wakf. There is not a whisper of a pleading even, let alone deed or instrument, whereby any ancestor or the predecessor-in- interest of the review petitioner’s father was appointed as a mutawalli. Clearly, no ancestor or predecessor in interest of the review petitioners was a “mutawali” within the meaning of expression in Section 3 of the Wakf Act, 1954. The review petitioners can also claim no such entitlement or appointment or rights as a result thereof. Complaint regarding encroachments on subject property 63. Several complaints are on record including complaints by the Jamia Arbia Nizamia Welfare Educational Society dated 27th July, 2015 and 24th August, 2015 regarding encroachments stating that the Amir Khusro Park, containing the dargahs and the wall mosque was previously a graveyard and that it was managed by the Delhi Wakf Board; that the South Delhi Municipal Corporation had constructed a Rain Basera in the year 2012 for temporary purpose; that under its shield, illegal activities had become rampant in the area and illegal jhuggis and encroachments being constructed.

64. In CM No.18177/2016, also a complaint stands made that encroachments and illegal activities have come up over the Amir Rev.P. No.242/2017 in W.P.(C)No.7955/2015 Page 46 of 75 Khusro Park and a direction was sought to the respondents to take appropriate actions against them. The applicant in the said application also specifically refers to the illegal efforts to convert a 500 year old monument into private residences by the encroachers.

65. It is noteworthy that the trial court order dated 6th October, 1981 in Suit No.4/1980 also notes that one Shafiq Mia had brought Suit No.45/1971 on 29th October, 1971 to the effect that he was a Mutawalli of Dargah Firdaus Ali Shah (marked ‘E’) claiming ownership of residential portion (a room) and the open land shown on the plan. By way of this suit, Shafiq Mia was claiming that the gazette notifications were invalid. So far as Shafiq Mia is concerned, his suit, based on such claims stands dismissed on 18th November, 1972. The notification dated 10th December, 1970 has become final under the provisions of Sections 6 of the Wakf Act, 1954. Removal of encroachments 66. The review petitioners have placed before us a copy of an affidavit dated, 7th October, 2010, filed by the Delhi Waqf Board in another writ petition being W.P.(C)No.3927/2010, Jamia Arabia Nijamia Welfare Educational Society v. Delhi Wakf Board & Ors. This affidavit has been sworn by Md. Ali Ashraf, Chief Executive Officer, Delhi Wakf Board. We extract hereunder the relevant portions of this affidavit inasmuch as it sets out the stand of the Wakf Board and the directions regarding removal of encroachments in paras Rev.P. No.242/2017 in W.P.(C)No.7955/2015 Page 47 of 75 6 and 8 : “6. That the Delhi Wakf Board initiated steps for removal of encroachments in accordance with Section 54 of Wakf Act, 1995. As a result of which a contempt petition No.5
was filed, wherein order dated 1.9.08 was passed by Hon’ble Mr. Justice S.N. Dhingra, directing the Delhi Wakf Board that within 60 days of proceedings qua eviction in respect of Delhi Wakf Board shall be completed and necessary orders shall be passed which shall further be sent to the SDM. xxx xxx xxx 8. That Delhi Wakf Board is bound by the directions issued by this Hon’ble Court Delhi Wakf Board is custodian of Wakf properties and duty bound to remove encroachment from such Wakf properties. In view of the aforesaid, it is prayed that the respondent will comply directions issued by this Hon’ble Court, in view of the disposal of the aforesaid writ petition.” (Emphasis by us) 67. CM No.18177/2016 has been filed by Jamia Arbia Nizamia Welfare Educational Society for impleadment before us. Alongwith the application, the said applicant has placed a response dated 2nd September, 2015, issued by the Delhi Wakf Board to it, stating that the Managing Committee duly constituted by the Delhi Wakf Board is managing the affairs of the graveyard “tikona kabristan”. Rev.P. No.242/2017 in W.P.(C)No.7955/2015 Page 48 of 75 Do the review petitioners establish that they are actually occupying the land?. Do the review petitioners make out a legal right to continue to remain in possession?. If so, can mere occupancy of another’s property be legally protected?.

68. In support of the occupancy of the Dargah Chitli Khangah, the review petitioners rely on a death certificate of Mohd. Yusuf dated 19th May, 2003; a receipt dated 25th March, 2003 of installation of an electricity connection and election cards.

69. Reliance is placed on Aadhar Card and Election Commission Card dated 15th December, 1995; ration card and passports.

70. These documents would not establish right, title or interest in immovable property. They do not establish a legal right with regard to the subject property.

71. We are compelled to observe that even it could be held that the documents in the nature of election card, ration card or passport could suggest presence of the review petitioner on the spot, their presence on the spot would not ipso facto entitle them to legal protection by virtue thereof.

72. It is trite that every occupancy by itself also does not create either any title or a right to remain in possession. It is only if the entry into possession of the property was lawful, that there is a legal right to remain in possession; or, if a person is in settled possession that the court would grant the equitable relief of injunction to him against forcible dispossession. A person in settled possession can be Rev.P. No.242/2017 in W.P.(C)No.7955/2015 Page 49 of 75 dispossessed only after due process of law. It has been held that in certain cases, a person can be evicted by use of reasonable force, in others, by due process of law.

73. In this regard, reference may be made to the pronouncement rendered by one of us (Gita Mittal, J.) reported at ILR (2012) 3 Del 247 Institute of Human Behaviour and Allied Sciences v. Govt. of NCT of Delhi wherein it was held thus: “92. xxx In this regard, the following principles were laid down by the Supreme Court in the judgment reported at (2004) 1 SCC769Rame Gowda (D) by Lrs. v. M. Varadappa Naidu (D) by Lrs “10. It is thus clear that so far as the Indian law is concerned the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser. A rightful owner who has been wrongfully dispossessed of land may retake possession if be can do so peacefully and without the use of unreasonable force. If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking law in his own hands, and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force. In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. Law Rev.P. No.242/2017 in W.P.(C)No.7955/2015 Page 50 of 75 presumes the possession to go with the title unless rebutted. The owner of any property may prevent even by using reasonable force a trespasser from an attempted trespass, when it is in the process of being committed, or is of a flimsy character, or recurring, intermittent, stray or casual in nature, or has just been committed, while the rightful owner did not have enough time to have recourse to law. In the last of the cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner.

11. It is the settled possession or effective possession of a person without title which would entitle him to protect his possession even as against the true owner. The concept of settled possession and the right of the possessor to protect his possession against the owner has come to be settled by a catena of decisions. Illustratively, we may refer to Munshi Ram v. Delhi Administration -:

806. Puran Singh v. The State of Punjab -: (1975) 4 SCC518: AIR1975SC1674and Ram Rattan v. State of Uttar Pradesh -:

1977. CHLJ433 The authorities need not be multiplied. In Munshi Ram's case (supra), it was held that no one, including the true owner, has a right to dispossess the trespasser by force if the trespasser is in settled possession of the land and in such a case unless he is evicted in the due course of law, he is, entitled to defend his possession even against the rightful owner. But merely stray or even intermittent acts of trespass do not give such a right against the true owner. The possession which a trespasser is entitled to defend against the rightful owner must be settled possession, extending over a sufficiently long period of time and acquiesced to by the true owner. A casual act of possession would not 1968 Cri LJ Rev.P. No.242/2017 in W.P.(C)No.7955/2015 Page 51 of 75 to an true owner have the effect of interrupting the possession of the rightful owner. The rightful owner may re-enter and re-instate himself provided he does not use more force than is necessary. Such entry will be viewed only as resistance intrusion upon his possession which has never been lost. A stray act of trespass, or a possession which has not matured into settled possession, can be obstructed or removed by even by using necessary the force. In Puran Singh's case (supra), the Court clarified that it is difficult to lay down any hard and fast rule as to when the possession of a trespasser can mature into settled possession. The ‘settled possession’ must be (i) effective, (ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. The phrase settled possession does not carry any special charm or magic in it nor is it a ritualistic formula which can be confined in a strait-jacket. An occupation of the property by a person as an agent or a servant acting at the instance of the owner will not amount to actual physical possession. The court laid down the following tests which may be adopted as a working rule for determining the attributes of ‘settled possession’: i) that the trespasser must be in actual physical possession of the property over a sufficiently long period; that to the knowledge (either express or implied) of the owner or without any attempt at concealment by the trespasser and which contains an element of animus possidendi. The nature of possession of the trespasser would, however, be a matter to be must be ii) the possession Rev.P. No.242/2017 in W.P.(C)No.7955/2015 Page 52 of 75 decided on the facts and circumstances of each case; iii) the process of dispossession of the true owner by the trespasser must be complete and final and must be acquiesced to by the true owner; and iv) that one of the usual tests to determine the quality of settled possession, in the case of culturable land would be whether or not the trespasser, after having taken possession, had grown any crop. If the crop had been grown by the trespasser, then even the true owner has no right to destroy the crop grown by the trespasser and take forcible possession.

12. In the cases of Munshi Ram (supra) and Puran Singh (supra), the Court has approved the statement of law made in lloram v. Rex -: AIR1949All 564, wherein a distinction was drawn between the trespasser in the process of acquiring possession and the trespasser who had already accomplished or completed his possession wherein the true owner may be treated to have acquiesced in: while the former can be obstructed and turned out by the true owner even by using reasonable later, may be dispossessed by the true owner only by having recourse to the due process of law for reacquiring possession over his property.” force, the 93. A Full Bench of this court was considering a claim by the petitioner for permanent injunction restraining the municipal corporation from interfering or disturbing him from a kiosk which was allotted to him in an auction on a licence in AIR1978Delhi 174Chandu Lal v. Municipal Corporation of Delhi. On the issue of the rights of the corporation to take possession of the kiosk after termination Rev.P. No.242/2017 in W.P.(C)No.7955/2015 Page 53 of 75 of the licence, the Full Bench of court has observed as follows:— “25. …….After the termination of the license, the licensor is entitled to deal with the property as he likes. This right he gets as an owner in possession of his property. He need not secure a decree of the Court to obtain this right. He is entitled to resist in defense of his property the attempts of a trespasser to code upon his property by exerting the necessary and reasonable force to expel a trespasser. If, however, the licensor uses excessive force, he may make himself liable to be punished under a prosecution, but he will infringe no right of the licensee. No doubt a person in exclusive possession of the property is prima facie to be considered to be a tenant, nevertheless he would not be held to be so if the circumstances negative any intention to create a tenancy.” 94. Light on this issue is thrown on the above issue also by the observations of the Supreme Court while examining the claim by a person in exercise of right of private defence of property under sections 96, 97, 100 and 101 of the Indian Penal Code, 1860. In this regard, the following principles laid down by the Supreme Court in (2005) 12 SCC657ishna alias Bhiswadeb Mahato v. State of West Bengal:— “85. Private defence can be used to ward off unlawful force, to prevent unlawful force, to avoid unlawful detention and to escape from such detention. So far as defence of land against trespasser is concerned, a person is entitled to use necessary and moderate force both for preventing the trespass or to eject the trespasser. For the said purposes, the use of force must be the minimum necessary or reasonably believed to be necessary. A reasonable defence would Rev.P. No.242/2017 in W.P.(C)No.7955/2015 Page 54 of 75 mean a proportionate defence. Ordinarily, a trespasser would be first asked to leave and if the trespasser fights back, a reasonable force can be used.” 95. It is trite, therefore, that mere occupation of another's property simplicitor could not entitle a person to an injunction against dispossession.” 74. Challenge to the above pronouncement was taken upto the Supreme Court of India vide SLP(C) No.35355-35356/2014, which was rejected. Review Petitions thereto being R.P. Nos. 860-861/2015 stood dismissed on 25th March, 2015.

75. The present review petitioners have not only flagrantly violated the series of orders of this court in all the above writ petitions but also the law laid down by the Supreme Court.

76. So far as open land is concerned, a presumption of possession is always deemed to be of the owner. In this regard, reference may usefully be made to a pronouncement of the Gujarat High Court reported at AIR1998Gujarat 17 Navalram Laxmidas Devmurari v. Vijayaben Jayvantbhai Chavda. In this case, the Gujarat High Court was considering a claim by the respondent for declaration of title to the suit property and injunction directing the appellant to remove a water tank, shed etc constructed over the same. The respondent had set up a plea that only one of the shops constructed on plot of land, which belonged to her husband, had been Rev.P. No.242/2017 in W.P.(C)No.7955/2015 Page 55 of 75 let out to the appellant. The open plot of land was in her possession and the appellant was not entitled to make use of any other part of the plot. The respondent had filed the suit making a grievance that despite this fact, the appellant had constructed a roof in front of the rented shop constructed a water tank and shed for keeping a motor pump to be used for the purpose of drawing water in the suit land and damaged the compound wall, without her knowledge and consent. A prayer was made in the suit seeking declaration and injunction that the appellant had no right to use or enter into the suit land except the house and shop let out to him. The respondent had also sought an injunction directing the appellant to remove the illegal constructions made by him over the suit land and claimed a permanent injunction restraining the appellant from disturbing the respondent (plaintiff) from using the suit land. The appellant/defendant had also set up a prohibition under Section 34 of the Specific Relief Act and contended that the suit for declaration simplicitor without seeking the relief of possession was not maintainable. This suit was decreed by the trial court.

77. The valuable observations and findings of the court deserve to be considered in some detail and are being reproduced in extenso hereafter : “11. The concept of possession is an abstract one. The ordinary presumption is that possession follows title. Presumption of possession over an open land always is deemed to be that of the owner and not of a trespasser. An open place of land shall be presumed Rev.P. No.242/2017 in W.P.(C)No.7955/2015 Page 56 of 75 to be in possession of the owner unless it is proved by the trespasser that he had done some substantial acts of possession over the land which may excite the attention of the owner that he has been dispossessed. As indicated above, an owner of an open land is ordinarily presumed to be in possession of it and this presumption becomes strong in his favour when the defendant fails to establish the ground on which he claims to have come in possession. The presumption that possession goes with the title is not limited to particular kind of cases where proof of actual possession is impossible on account of nature of the land, such as boundary land, forest land or submerged land. The presumption applies to all kinds of lands. Where plaintiff proves his title, but not any act of possession and the defendant does not prove possession except unnoticed user of small part of land, the presumption that possession follows title will come into play.

12. …… As the appellant has miserably failed to establish the ground on which he claims to have come in possession of the disputed land, I am of the view that presumption that possession follows title will come into play. Except construction of water tank and shed over the open land and construction of roof in front of the shop the appellant has not done any substantial acts of possession over the land which may excite the attention of the respondent that she has been dispossessed. It may be mentioned that the construction is over a small piece of land which totally admeasures 995-1 sq. yds. The small piece of land over which the construction was made, was of no present use to the respondent and being convenient in many ways to the appellant, the latter had made use of Rev.P. No.242/2017 in W.P.(C)No.7955/2015 Page 57 of 75 such user amounts in land. Whether it in various ways without notice of the respondent. Such user as this, cannot be construed as an act of dispossession of the respondent. User of this sort under similar circumstances is common in this country and excites no particular attention. It is neither intended to denote or understand as denying on one side or the other a claim to dispossession of the to dispossession or not has been considered by the Court the case of State of Gujarat v. Patel Chhotabhai Bhaijibhai. In the said case, the land belonged to the Government. The respondent had been tethering cattle for more than 60 years. It was pleaded by the respondent that he had become owner of the land by adverse possession, as he was using the same for tethering cattle. After making reference to the case of Framji Cursetji v. Goculdas MadhowjiILR (1992) 16 Bom 338, the Court has held that evidence to show user of the site by tethering cattle for more than 60 years would not constitute possession. Again, in the case of Memon Mohmed Ismail Haji (supra), the plaintiff had filed suit for mandatory injunction for removal of the foundation dug by the plaintiff and for prohibitory injunction restraining the defendant from doing any construction on the suit land. The plaintiff had all along asserted that possession of the open land was with him. The injunction prohibiting defendant from entering into the land was also sought. The suit was dismissed by Trial Court as well as first Appellate Court. It was found that the disputed property therein was an open land where some construction material had been placed and not only foundations were dug, but construction work was also being done. It was noticed that the first Appellate Court had negatived claim of the defendant that they Rev.P. No.242/2017 in W.P.(C)No.7955/2015 Page 58 of 75 were in legal possession of the land, as they were using part of it for the purpose of drying saries. However, the first Appellate Court had treated act of drying saris as an act of dispossession of the plaintiff. The High Court has held that all along the defendant used open land as any neighbour could use for drying saris and if the plaintiff's suit was on the allegation that neighbours were now committing acts of waste of his property by digging foundation and they be restrained from doing so, the averments in the plaint could never be treated as averments of the plaintiff having been dispossessed. While allowing the Second Appeal the Court has observed as under:— “The plaintiff all along asserted that possession of the open plot was with him as he was a title holder. He even never sought any declaration of his title and claimed only an injunction because such open plot would always be in his possession as a title holder. The defendant tried to assert adverse title to this open land and he failed. Therefore, the defendant had no possession whatever of this open land. Even on his own showing, at the date of the suit he was found only to have started doing waste of the plaintiff's property. The neighbour may not object so long as the user was of drying Saris on this land. A neighbour is surely entitled to object when his land is sought to be wasted and such adverse claim is sought to he asserted on the relevant the injunctions were against these trespassers on the footing that the plaintiff had remained in possession of this open land and the defendant-trespasser who was only trying to commit waste should be prevented Therefore, claimed suit land. Rev.P. No.242/2017 in W.P.(C)No.7955/2015 Page 59 of 75 from committing such waste, by removing whatever he had done and that he should be restrained from entering in this land. Therefore, the averments were consistent with his being in possession of the land and the defendant- trespasser being completely out of possession. These allegations were completely misread by the Lower Appellate Court and contrary to its own finding that drying of saris would not amount to legal possession, it has recorded a perverse finding that this trespasser was in possession and on that ground, the plaintiff has been non-suited.” 13. From the principle laid down in the above-quoted decision, it is evident that mere user of part of the open land would not amount to dispossession of the owner and owner is entitled to object when the property is sought to be wasted and or when adverse claim is sought to be asserted with reference to the open land. In the case of Framji Curseti (supra) in addition to tethering cattle some construction had also been made. But, inspite of that it was held that the user by tethering cattle and the construction of a temporary structure would not amount to possession in case of open land.

14. At this stage it would be advantageous to notice another unreported judgment rendered in Special Civil Application No.3
by M.B. Shah. J.

(as he then was) on 2/5/6-3-85. Therein the petitioner had filed H.R.P. Suit before the Small Causes Court at Ahmedabad for a declaration that he was tenant of the suit land. He had also prayed for a permanent injunction. During suit, an the pendency of Rev.P. No.242/2017 in W.P.(C)No.7955/2015 Page 60 of 75 that found application Exh. 5 was filed by him claiming temporary injunction. The declaration and permanent injunction were claimed on the ground that he was tenant in possession of land admeasuring 1300 sq. yds. out of final plot No.1099 at Naranpura and had not only constructed kachcha shed on it, but was also keeping cattle, manure and other articles in the land. The Small Causes Court the petitioner did not prove prima facie case and was not tenant of house along with open piece of land admeasuring 1300 sq. yds. In that view of the matter, the Small Causes Court rejected application Exh, 5. Thereupon the petitioner preferred an appeal before the Appellate Bench of the Small Causes Court. After the Appellate Bench appreciation of evidence, dismissed therefore, approached High Court by way of filing petition under Article 227 of the Constitution of India. The High Court considered the question whether the petitioner could be said to be in possession of the land in dispute merely because he was tethering cattle, storing cow dung over some part of the land and that some kachcha shed of 9′ × 9′ was constructed by him over the land. After making reference to the cases of (i) State v. Chhotabhai (supra) and Framji Cursetji (supra), it is held as under:— the appeal. The petitioner, record to show that there case also, the present “In is no evidence on the petitioner is in exclusive possession of the land in dispute, this type of” casual unnoticed user of open piece of land cannot be considered as exclusive possession of land and conferring right over the land in the person using that the respondent is the owner of land and the is an admitted fact the it. It Rev.P. No.242/2017 in W.P.(C)No.7955/2015 Page 61 of 75 doctrine that possession follows title requires to be applied, as it is vacant land. The panchnama clearly shows that on the three sides of the land there is fencing and this also indicates that the respondent is in possession of the land. So taking into consideration the fact that the petitioner has failed to prove his prima-facie right, title or interest over the land in dispute or even exclusive possession of the land, the learned judge has rightly not granted injunction as prayed for by the plaintiff.” From the principle of law enunciated in the above quoted case, it is evident that casual unnoticed user of open piece of land cannot be considered as exclusive possession of the land and conferring right over the land in the person using it.” (Emphasis supplied) For the above reason as well, the trespassers in the present case cannot be protected.

78. In view of the above narration, it is apparent that the review petitioner has set up a claim in the Special Leave Petition which was completely contrary to the claim which was set up by his predecessors-in-interest in Suit No.4/1980; the stand of his alleged predecessors-in-interest in the purported Will as well as the General Power of Attorney. The applicant is unable to even remotely establish that his predecessors-in-interest were mutawallis in respect of the Rev.P. No.242/2017 in W.P.(C)No.7955/2015 Page 62 of 75 Dargah Shah Firdaus, Dargah Musafir Shah with a wall type mosque which is the subject matter of the notification of 1970 of the Delhi Government. The petitioner has failed to even remotely supplement the pleas set up by him in CM No.18595/2017 for impleadment and CM No.18596/2017 for deferring the demolition. In fact, as noted by us in para 7 of the order dated 24th May, 2017, the plea set up before the Supreme Court is completely contrary to the pleas set up in the Will of 1980; General Power of Attorney of 1981 as well as in the application before us.

79. We may also note that the petitioners have claimed the occupancy for hundreds of years through their predecessors-in- interest. The documents placed before us would show that the electricity connection was installed for the first time in the year 2003. There is no receipt regarding the installation or availability of any sewage connection on the subject land.

80. In fact, the plea of Mohd. Yusuf and Mohd. Yunus of the predecessor-in-interest in the Suit no.4/1980, Delhi Wakf Board v. Mohd. Yunus & Ors. belies the plea that the review petitioner have set up before us.

81. It is also important to note that as per the notification dated 31st December, 1970 relied upon by the respondents, the land in question could be used only for the object of “burial of the dead”. As per the review petitioners as well as the status reports of the authorities on record and the information noted by us in our orders, this land stands Rev.P. No.242/2017 in W.P.(C)No.7955/2015 Page 63 of 75 misused for rampant commercial usage.

82. The review petitioners have therefore, miserably failed to establish existence of old residential structures or possession thereof by their ancestors. On the contrary, they have established attempt to trespass and illegal usage of the land in question. They have failed to establish any entitlement to interim directions.

83. The writ petitioner contends that it is a public park owned by the Delhi Development Authority (respondent no.2 herein) which is known as the Amir Khusro Park.

84. Para 75 85. The Delhi Development Authority - respondent no.2 has filed a status report dated 30th May, 2017 contending that, vide letter no.L&DO/L-IIA/RTI/2012/105/257, the Ministry of Urban Development, through the Land and Development Office, had declared that the triangular park was allotted by it to the Delhi Development Authority in the year 1972 to be maintained as Green.

86. According to the Delhi Development Authority, the statutory mandate of the Master plan has to be strictly complied with and no new structure can be protected or saved thereunder which are apparently non-conforming. It is further contended that the illegal new structures stand constructed with ulterior motives adjacent to old structures giving them the facade of merging with the old structures so as to give them the appearance of being old structures, which cannot be protected. This position is not contested by the Delhi Wakf Board Rev.P. No.242/2017 in W.P.(C)No.7955/2015 Page 64 of 75 as well. Whatever be the parties stand, it cannot be disputed that the law has to be complied with.

87. So far as the structures which are ancient or old, which have to be protected, are concerned the notification of 1970 establishes the existence of Dargah Shah Firdaus, Dargah Musafir Shah and a wall type mosque. The Delhi Wakf Board also maintains the same position. Therefore, these are the only old structures on the land in question.

88. In the case in hand, both the Delhi Development Authority as well as Delhi Wakf Board are staunchly contesting the claim of the applicant and have urged that they are rank encroachers who are trying to crystallize a legal claim on the property.

89. While the Delhi Development Authority has asserted its entitlement, it is not disputed that the property has to be maintained as a green area.

90. Delhi Wakf Board has asserted that the land was a Muslim graveyard and that it had the structures of two graveyards, namely, Dargah Shah Firdaus, Dargah Musafir Shah with a wall type mosque. The review petitioners claim several structures wherein they claim to have been residing. The claim on such residences structures is not supported by any document in the nature of the Government notifications extracted above or Government records. There is no evidence to establish existence of such structures.

91. We make it clear that we shall consider the issue of vesting of Rev.P. No.242/2017 in W.P.(C)No.7955/2015 Page 65 of 75 land and title in the DDA or the Delhi Waqf Board separately in the writ petition. The same is not relevant for the present petition as all parties are agreed that the above old structures have to be preserved and the land has to be maintained as a green. All the authorities have complained of rampant encroachments. Orders of the Division Bench for removal of the unauthorized encroachments and developments have remained uncomplied with for years together. The police has complained of strong resistance. These orders have obtained finality. They bind this court. They certainly not only bind but have to be complied with by the respondents as well as the review petitioners.

92. It is also noteworthy that the Will and the General Power of Attorney from which the review petitioner is deriving right and interest referred to Dargah Chitli Khanka whereas in the Supreme Court order dated 19th May, 2017, the petitioner has referred to Masjid and Dargah Musafir Shah. The notification of 1970 refers to a “wall type mosque”. The review petitioner therefore, has no locus standi to intervene in the present writ petition and has no legal right to remain in occupation of any portion of the tikona graveyard park also known as Amir Khusro Park.

93. We may also usefully refer to the status report dated 22nd May 2017 filed by the Delhi Development Authority wherein it has been stated that the Delhi Development Authority has removed illegal and unauthorized encroachments including jhuggis (shanties), kabaris, illegal constructions etc. at the Amir Khusro Park and that the Rev.P. No.242/2017 in W.P.(C)No.7955/2015 Page 66 of 75 structure in the nature of masjid. In the status report, it has been stated that old structures in the nature of dargah, masjid and few scattered graves (unmarked) would not be demolished. Illegal actions of the respondents which are causing irreparable loss and damage not only to the environment of the Amir Khusro Park but creating dangerous consequences and imperilling the life and liberty of the other residents in the city and visitors to the area 94. There are other extremely monuments in the immediate vicinity of the Tikona Park/Amir Khusro Park. The park is bound by the Lodhi Road as well as Lala Lajpat Rai Marg (earlier known as the Link Road) while the Mathura Road connects the traffic coming from Agra to the rest of the Delhi. Lala Lajpat Rai Marg is the only connection between the South Delhi and the rest of the Delhi. The Lodhi Road connects the entire area to the Link Road near the All India Institute of Medical Sciences going towards Gurgaon as well as on to the Ring Road. These arterial roads are therefore, the major lifelines and circulation areas and at any point of time bear extremely heavy traffic.

95. Inspector Ved Prakash, the then SHO, PS Hazrat Nizamuddin in his status report dated 17th October, 2015 had stated as follows : “It is most respectfully and humbly submitted that vide this petition, the petitioner has raised issues regarding encroachment of land and establishment of jhuggies in the area of Khusro Park.

... Petitioner

has further raised various issues including that the said park is within the 100 meters of Rev.P. No.242/2017 in W.P.(C)No.7955/2015 Page 67 of 75 the Archaeological Survey of India’s historical monument known as Sabz Burl (Neela Gumbad) and including people used to bath and urinate in the open. In this regard, it is submitted that the said land opposite to Basti Hazrat Nizamuddin is lying vacant and popularly known as Khusro Park. On the said land, few years back, initially a Rain Basera was built by Shakti Shalini NGO to provide shelter for female and children. Around 300-400 people who were either beggars, homeless and vagabond also started taking shelter in Khusro Park and their numbers stated increasing. They started living there by way of putting temporary structures with the help of tarpaulin. On 30.03.2013 at around 10 AM, DDA Horticulture staff came over to police station for police assistance in removing encroachment in Khusro Park in the shape of temporary shelters, made by some persons. Police staff along with horticulture staff of DDA went to Khusro Park and horticulture staff removed the encroachment in Khusro Park. While encroachment was being removed, some miscreants with a view to create mischief, burnt wastes etc. The said issue was also highlighted in Writ Petition No.29 of 2010 in the matter of Court on its own motion vs. State of NCT of Delhi & Ors. Time to time efforts were made the encroachments at our own, but due to strong protest of residents, no fruitful result came out as they put forward their females and also throw children in front of the police party and level all kind of false allegations against the police party. Permanent picket was also deployed at the to stop Rev.P. No.242/2017 in W.P.(C)No.7955/2015 Page 68 of 75 said site.” (Emphasis by us) 96. The respondents do not mention existence of any sewage or sanitation facilities on the land in question. No toilets are referred to. As a result, if habitation is permitted in this park there would be huge issues of garbage as well urination & defecation in the open area, if people are permitted to reside therein.

97. In WP(C)No.8917/2015 Gauri Grover vs. Government of NCT of Delhi and WP(C)No.9006/2015 Arpit Bhargava vs. GNCT of Delhi through its Chief Secretary & Ors., this court is faced with the huge menace of mosquitoes in Delhi, i.e., disease bearing vectors. Already extreme cases of dengue and chikanguniya have surfaced. Both these diseases are proved to be fatal and in the past have resulted in tremendous fatalities.

98. The park, which is the subject of the writ petition, is in close proximity, on the one side to the school providing education to thousands of people and on the other side, by hotel.

99. In an order dated 2nd June, 2017 passed in WP(C)No.8917/2015 Gauri Grover vs. Government of NCT of Delhi and WP(C)No.9006/2015 Arpit Bhargava vs. GNCT of Delhi through its Chief Secretary & Ors., we have noted the imperative requirement of accommodating the right to health, clean air and environment of the residents of Delhi, an essential part of Right to Life under Article 21 of the Constitution of India and observed that this right cannot be Rev.P. No.242/2017 in W.P.(C)No.7955/2015 Page 69 of 75 compromised when consideration of the right to shelter comes up. In this regard, we have also noted the concerns of the Supreme Court of India regarding the situation in Delhi in the judgments, relevant portions whereof are reproduced thus: (i) Subhash Kumar vs. State of Bihar : (1991) 1 SCC598 “7.......Right to live is a fundamental right under Article 21 of the Constitution and it includes the right of enjoyment of pollution-free water and air for full enjoyment of live. If anything endangers or impairs that quality of life in derogation of laws, a citizen has right to have recourse to Article 32 of the Constitution for removing the pollution of water or air which may be detrimental to the quality of life......” (Emphasis Supplied) (ii) M.C. Mehta vs. Union of India: (1992) 3 SCC256 “2. We are conscious that environmental changes are the inevitable consequence of industrial development in our country, but at the same time the quality of environment cannot be permitted to be damaged by polluting the air, water and land such as extent that it becomes a health hazard for the residents of the area. We are constrained to record that Delhi Development Authority, Municipal Corporation of Delhi, Central Pollution Control Board and Delhi Pollution Control Committee have been wholly remiss in the performance of their statutory duties and have failed to protect the environments and control air pollution in the Union territory of Delhi. Utter disregard to environment has placed Delhi in an unenviable position of being the world’s third grubbiest, most polluted and unhealthy city as per a staudy conducted b the World Health Organisation. Needless to say that every citizen has a right Rev.P. No.242/2017 in W.P.(C)No.7955/2015 Page 70 of 75 to fresh air and to live in pollution-free environment. ” (Emphasis Supplied) (iii)M.C. Mehta vs. Union of India: (2004) 12 SCC118 “10. The natural sources of air, water and soil cannot be utilised if the utilisation results in irreversible damage to environment. There has been accelerated degradation of environment primarily on account of lack of effective enforcement of environmental laws and non-compliance of the statutory norms. This Court has repeatedly said that the right to live is a fundamental right under Article 21 of the Constitution and it includes the right to enjoyment of pollution-free water and air for full enjoyment of life.” (Emphasis Supplied) (iv) Arjun Gopal vs. Union of India: (2017) 1 SCC412 “10. When we refer to these extreme effects, we are not merely referring to the inconvenience caused to people, but to abject deprivation of a range of constitutionally embedded rights that the residents of NCR ought to have enjoyed. Needless to state, the grim situation of air quality adversely affected the right to education, work, health and ultimately, the right to life of the citizens, and this Court is constitutionally bound to address their grave concerns. May we remind ourselves, that this is not the first time that this Court was impelled into ensuring clean air for the citizens of the capital region.” (Emphasis Supplied) Rev.P. No.242/2017 in W.P.(C)No.7955/2015 Page 71 of 75 (v) M.C. Mehta vs. Union of India (UOI) and Ors.: (2004) 6 SCC288 to posterity and “14. It is also necessary to note as to what stand from time to time the Ministry of Urban Development has taken on the aspect of in situ regularisation. In an affidavit dated 4-12- 2000 filed by its Deputy Secretary, reliance has been placed by the Ministry upon the statement made by its Minister on the floor of the House on 24-11-2000. In that statement, opposing regularisation, the Minister said as to what Delhi we want to live in, what type of legacy do we wish to bequeath to our children and grandchildren; do we want our city to become a junkyard of unauthorised constructions, mirroring civic and moral chaos, or an orderly and disciplined capital of a resurgent republic, embodying values of justice and honesty on the basis of which we have often claimed a pre-eminent position for our culture and civilisation. The statement further gave facts and figures that 50 million gallons per day of industrial waste is going into the Yamuna and said that what is seen flowing in it today is nothing but sewage and industrial waste. In Okhla alone, for instance, during March-April 2000, the biochemical oxygen demand (BOD) level in the river was about 70 mg per litre as against a standard of 3 mg per litre i.e. 25 times more than the permissible level. An apprehension was expressed that if the present attitudes and practices persist, Delhi would run the risk of having as many as 30 million people in the next few years and becoming an ugly, unhealthy, unworkable and unliveable city. In the process, a fatal blow would also be dealt to the development of the National Capital Region which comprises a substantial part of three important neighbouring States of Haryana, Rajasthan and Uttar Pradesh. The affidavit states that in case of large number of Rev.P. No.242/2017 in W.P.(C)No.7955/2015 Page 72 of 75 residential colonies, with so-called 70% concentration of industries of which the entire land use is sought to be changed from residential to industrial, should the master plan be amended to destroy its very soul and structure or subvert the basic norms of health, habitation and environment or reward the illegal establisher of industries and in the process penalise the law-abiding residents and condemn them to stay forever in industrial areas or force them to abandon their houses built with hard-earned income?. It also states that no one has made it clear where the residents would be taken, what would the cost of resettlement be, who will bear it and how would the layouts and pattern of services and infrastructure, meant for residential colonies, be adjusted to the requirements of industries and consequent traffic and transport that would flow not only in the colonies in question but also in their neighbourhood.” (Emphasis Supplied) 100. No court can permit the lives of the lawful residents in the surrounding areas, as well as of the visitors to these monuments which are of international repute, to be imperilled. It is our constitutional duty to ensure that the right to life of all residents of Delhi is not imperilled if activity which would lead to increase of insanitary conditions as well as breeding of mosquitoes carrying dangerous diseases is continued or permitted. The photographs on record also suggest such activities.

101. It is clearly evident from the pleadings of the review petitioners that they are attempting to and had caused encroachments over the Rev.P. No.242/2017 in W.P.(C)No.7955/2015 Page 73 of 75 park in which they have no right, title or interest. The same is completely impermissible.

102. If the complaints made on court record before us are correct, the review petitioners are not only indulging in efforts to grab the land of the park but have also committed fraud by renting out portions and taking rent and other charges and carrying out commercial usage on the land. These fraudulent activities would be penal offences under the provisions of the Indian Penal Code and municipal law. Unfortunately, the authorities or local police have failed to comply with the court orders as above. The police has also failed to conduct any investigation into the gross illegalities at the spot or to ensure compliance with the law. Conclusion 103. For all these reasons, clearly the review petitioners are interlopers and have no right whatsoever on the subject matter of the writ petition.

104. The review petitioners are unable to point out any error apparent from the face of the record entitling a review of the order dated 16th May, 2017. This review petition is therefore, dismissed. Result (i) This review petition is devoid of legal merit and is hereby dismissed. The pending application is also dismissed. Rev.P. No.242/2017 in W.P.(C)No.7955/2015 Page 74 of 75 (ii) A direction is issued to the DCP, District South East as well as the SHO of the concerned police station to cause an investigation to be conducted into the fraudulent and criminal activities which are the subject matter of the writ petition as well as the review petition and to proceed in accordance with law against the persons found culpable for the aforenoticed illegal activities. A status report shall be filed before us within eight weeks from today. ACTING CHIEF JUSTICE C.HARI SHANKAR, J JUNE05 2017 aj/mk Rev.P. No.242/2017 in W.P.(C)No.7955/2015 Page 75 of 75