The direction of removal of encroachment is without prejudice to rival claims to ownership of graveyards: Delhi High Court
W.P.(C) 17520/2022 & CM APPL. 55902/2022
MOHD ISREAL AND ORS vs DELHI DEVELOPMENT AUTHORITY AND ANR.
The current writ petition has been filed by 7 Petitioners, who have identified themselves as slum dwellers residing in Shahi Qabarastan in Khasra No. 163, Ward No. 1, Mehrauli, Delhi (the graveyard). It is stated that the Petitioners’ were allowed to reside in the subject land by Prince Mirza Arif Bakht Anjum Jah, who had executed a license deed dated 31.01.2013 in favor of the now deceased father of Petitioner no. 2 and appointing him as a caretaker. The writ petition was before the HON’BLE MR. JUSTICE MANMOHAN and HON’BLE MS. JUSTICE MANMEET PRITAM SINGH ARORA.
FACTS OF THE CASE:
The present petition challenges the demolition order of 12.12.2022 issued by Respondent no. 1, Delhi Development Authority (‘DDA’), calling upon the encroachers to remove themselves from the Government land falling in Khasra No. 163, within 10 days, failing to do so will lead the respondent to recover the cost of demolition from the said encroachers.
The Learned counsel for the Petitioners contends that the subject land, where the Petitioners have been residing consists an old private graveyard, where members of Ex-Royal Family of Mughal Dynasty are buried. He states that Prince Mirza Arif Bakht Anjum Jah allowed the locals of the subject land to reside at the graveyard and look after it as caretakers. He also contends that the land does not belong to Delhi Development Authority and hence making the proposed demolition action as illegal.
The council also points out that the impugned demolition order itself records that there are subsisting stay orders of this Court restraining removal action in Khasra No. 163. He also brings it to the notice of the court that the Petitioners have constructed jhuggis (i.e. a slum dwelling typically made of mud and corrugated iron) in the graveyard and have been residing there for past 30 years. He states that the petitioners are workers of daily wages residing with their families and will be made homeless during the winter, if the Respondent no.1 is not stopped from performing the demolition action.
The council also brings an order dated 04.01.2008 passed by a Civil Judge to the notice of the court. This order restrains the Respondent no. 1, Delhi Development Authority, and Delhi Waqf Board from creating any third-party rights or raising any construction in the subject land. This was passed with respect to a case where the members of the Royal family, Delhi Development Authority and Waqf Board are contending for the ownership of the graveyard.
The council for the petitioners further, states that even if it is assumed that the land belongs to Delhi Development Authority, the houses of the Petitioners cannot be demolished without rehabilitation as per the provisions of Delhi Slum & JJ Rehabilitation and Relocation Policy, 2015 (‘Policy of 2015’) of Delhi Urban Shelter Improvement Board (‘DUSIB’). He also seeks to place the Draft Protocol for removal of Jhuggis and JJ Bastis in Delhi dated 14.06.2016 (‘Draft Protocol of 2016’) of Delhi Urban Shelter Improvement Board. He states that the Petitioners’ Jhuggis are a part of notified Jhuggi cluster i.e. Basti of Ghosiya Colony.
The learned counsel for the Respondent no. 1, Delhi Development Authority states that the Khasra No. 163 has been acquired by Government of India and the entire land has been placed at their disposal since 1974. She states that the subject land is therefore a Government land.
She contends that the Petitioners herein have no right, title or interest in subject land and that they are rank encroachers and therefore possess no enforceable rights to maintain the current petition. She contends that injunction cannot be granted against the true owner.
The learned counsel for the Respondent emphasizes that Khasra No. 163 forms part of ‘Mehrauli Archeological Park’ and that the challenged order dated 12.12.2022 proposing action for removal of unauthorized encroachments has been issued to implement the directions issued by the Division Bench of this Court in:
- P.(C) 4302/2015 titled The Indian National Trust for Art & Cultural Heritage (INTACH) vs. DDA & ors
- P.(C) 13905/2019 titled The Managing Committee of Delhi Waqf Board’s Masajids, Graveyards and Land/Properties at Ladha Sarai vs.GNCTD & Ors.
As per the directions of the above writ petitions a total station survey was conducted and the area of Mehrauli Archaeological Park has been demarcated for the seam line of the said park. She states that the subject land is within this seam line and all encroachments needs to be removed.
The learned counsel for the Respondent further relies upon order dated 23.12.2022 passed by the Division Bench, in W.P. (C) 17591 of 2022 filed by Delhi Waqf Board challenging the same order dated 12.12.2022. Here, the Division Bench recorded the statement of Respondent i.e. the Delhi Development Authority who assured that the religious structures as well as graveyards will not be demolished. Hence, the Division Bench declined to grant any interim relief after recording the above statement.
The learned counsel for the Respondent also contends that the Petitioners have neither made Delhi Urban Shelter Improvement Board a party to this petition nor made any representation to them for verifying the claims of the Petitioner and recognizing them as individuals eligible for rehabilitation under the Policy of 2015. Ghosiya Slum Cluster i.e. Basti has not been notified. She states that the Petitioners claim for rehabilitation as per Policy of 2015 is not made out from the record. Hence, making the argument of the Petitioners rights of rehabilitation unsupportive.
JUDGEMENT:
No claim under license deed dated 30.01.2013 can be maintained by Petitioner Nos. 1, 3, 4, 5, 6 and 7. The license deed as per the writ petitioners was executed in favour of deceased father of Petitioner No. 2. As per the contents, under clause 8 there is an absolute bar on the licensee to sub-let, assign or otherwise part with the possession of whole or any part of the occupied portion or elsewhere within the boundary of the graveyard. Thus, Petitioner No. 1, 3, 4, 5, 6 and 7 have no right to remain in the graveyard on the basis of the above license deed.
With respect to the claim of Petitioner No. 2 that his deceased father was granted a license by Prince to look after the private graveyard. Even if it is assumed that the Prince Mirza Arif Bakht Anjum Jah is the owner of the private graveyard, a license is not heritable and upon demise of the licensee. The Petitioner No. 2 therefore cannot claim any rights to continue to reside in the graveyard under the license deed dated 31.01.2013, as it came to an end on the death of his father.
As per the recorded statement of the Respondent i.e. the Delhi Development Authority in W.P. (C) 17591/2022 that graveyards will not be demolished, work will take place as per the prepared demarcation report only encroachers are being removed.
The Court observed that the petitioners have failed to show their right to remain in the graveyard, considering the orders passed by the Division Bench, directing Delhi Development Authority to remove encroachers from the Mehrauli Archeological Park.
The Petitioners have declined to offer any undertaking to this Court to vacate the subject land, but taking into consideration their hardships time until 15.01.2023 has been granted to vacate the jhuggis.
Taking note of the current circumstances, this Court is unable to opine or examine the eligibility of the Petitioners to be rehabilitated in accordance with the 2015 Policy, Draft Protocol of 2016. The Petitioner’s rights, if any, under the above policy shall be determined by the competent authority in accordance with law, if and when the Petitioners approaches the Competent Authority.
The court in the current writ petition only examined the claims of the petitioners to remain in the said graveyard and did examine the claim that the private land was owned by the Prince Mirza Arif Bakht Anjum Jah.
The present petition stands dismissed.
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JUDGEMENT REVIEWED BY ADITYA G S.