Avinesh Kumar v. Delhi Development Authority and Anr.

14. Learned counsel for Appellant at the outset submits that his locus standi in present case is as a devotee and worshipper in the Shiv Temple, which right he asserts has existed since 1969. Additionally, his rights flow from Right to Religion under Article 25 of the Constitution of India and the Right to Worship, as the Temple has existed for more than 60 years, and hence his Right to Worship will be violated, if it is demolished. 14.[1] On the issue of maintainability under Section 91 of CPC, the Appellant relies on the Delhi High Court's decision in Har Kishan Lal & Ors. vs Jain Textiles Traders[2] to submit that an independent right to sue is protected by Section 91(2) of CPC and, thus the suit would not be barred by Section 91. It is submitted that the learned Trial Court, while deciding the preliminary issue, overlooked the provisions of Section 91(2). 14.[2] The Appellant contends that the Right to Worship is a civil right within the meaning of Section 9 of the CPC, as per the Supreme Court's decision in Ugamsingh and Mishrimal v. Kesrimal &Ors.3. Reference is also made to the M. Siddiq (Ram Janmabhumi Temple-5 J.) v. Mahant Suresh Das & Ors.4, where a similar suit was filed by a Hindu devotee. 14.[3] The Appellant further relies on Committee of Management, Anjuman Intezamia Masajid v. Rakhi Singh & Ors.5, and, Chockalingam (now died) & Ors. v. Nambi Pandiyan & Ors.[6] to submit that Right to Worship is a civil right and a civil suit for enforcing the same is maintainable. The Appellant also relies on the Supreme Court judgement in Deoki Nandan v. Murlidhar & Ors.7, to submit that

1956 SCC OnLine SC 12 worshippers are the true beneficiaries of religious endowments and therefore, would have personal interest in matters of worship. 14.[4] The Appellant further disputes the Respondent/DDA’s claim that the temple came into existence in 2017, citing documentary evidence including minutes of a meeting dated 03.08.2017 and a news article dated 05.10.2009 which are annexed with the case file. The Appellant further contends that the Respondent has never been in possession of the suit land and that settled possession cannot be disturbed except in accordance with law. Contentions of the Respondent/DDA

15. The Respondent/DDA submits that the suit land, which forms part of Khasra no. 688, is government property acquired under Award NO. 40/1978-79 which was transferred to the Horticulture Division of the Respondent/DDA for development as a green park. It is contended that in 2017, the Appellant constructed an unauthorized boundary wall, prompting complaints to local authorities. Consequently, a Special Task Force, headed by the SDM, decided to remove the unauthorized encroachment on 21.08.2017, which led to the filing of the present suit by the Appellant. 15.[1] The Respondent/DDA submits despite various complaints lodged in 2017 requesting demolition, it could not be executed due to lack of police force. 15.[2] The Respondent/DDA contends that the Appellant has not provided evidence of personal or ancestral contribution to the temple's construction or land donation. The suit land, being government property, gives the Appellant no right, title, or interest. Moreover, the Appellant is neither a priest nor part of the temple committee, and as such suit is not maintainable as it is filed in his independent capacity. 15.[3] The Respondent/DDA submits relies on the judgment of the Supreme Court in Hydha Muslim Welfare Masjid-E Hidaya and Madarasa VS. N. Dinakaran and Others[8] which upheld the Madras High Court order, wherein it was held that constructing illegal structures is not a way to preach religion, reaffirming that unauthorized religious structures, whether temples or mosques, should be demolished as per previous Supreme Court directives. 15.[4] The Respondent/DDA further submits that the Appellant lacks locus standi to file for permanent and mandatory injunction without having right, title, or interest in the land. Even as a devotee, the suit is not maintainable under Section 91 of the CPC. 15.[5] Learned Counsel for Respondent/DDA further contends that there is no infirmity in the Impugned Judgment. He submits that the matter was examined by the learned Trial Court and by its order dated 15.07.2020, the Court found prima facie that the Appellant lacked right, title and interest in the suit land. Since, the order dated 15.07.2020 was upheld by this Court, and thereafter not challenged by the Appellant, the said order has attained finality as such any contention to the contrary by the Appellant is without any legal basis. 2024 SCC OnLine SC 204 15.[6] The Respondent/DDA further submits that suit is not even maintainable under Section 41(j) of the SRA, as the Appellant has no personal interest in the matter, and thus, no injunction can be granted against the true owner, i.e. the Respondent/DDA. In support of its contention, it cites the judgment in Premji Ratansey Shah and Others vs Union of India and Others[9].

16. During arguments, the learned Counsel for the Appellant, on instructions, has stated that the Appellant was not claiming any ownership over the suit land and does not dispute the fact that the suit land belongs to Respondent/DDA. Thus, ownership of Respondent/DDA has not been denied by the Appellant. What is contended, however is that a suit for injunction as filed is maintainable.

17. The primary prayers in the Plaint by the Appellant filed before the learned Trial Court are: “a) Pass a decree of permanent injunction in favour of Plaintiff and against the defendants, thereby refraining the defendants and their agents, servants, relatives, associates, attorney, etc. from removing any deity and belongings of the temple from temple premise and further refraining them from demolishing the Shiv Mandir located at Shiv Park, Kondli Sabzi Mandi, Delhi-110096, in the interest of justice. b) Pass a decree of Mandatory injunction in favour of Plaintiff and against the defendants and their agents, servants, relatives, associates, attorney, etc. thereby directing them to restore the Holy Takht and other articles belonging to the temple and further directing them to stop illegal gambling and intoxication happening around the Shiv Mandir in Shiv Park, in the interest of justice. c) Pass a decree damages of Rs.3,04,800/- (Rupees of Three Lakh Four Thousand Eight Hundred) in the favour of the Plaintiff, in the name of the temple for the damage caused to the temple, as against the defendant…” 1994 (3) Scale 562: (1994) 5 SCC 547 17.[1] The Appellant has sought a permanent injunction restraining the Respondents from removing any deity and belongings of the temple; mandatory injunction was sought directing the Respondents to restore the articles/belongings to the temple and to stop the illegal gambling and intoxication around the temple. It is further set out in the Plaint that the Appellant has locus standi to file the suit in view of the fact that he is a “regular worshipper” at the Shiv Mandir. 17.[2] As stated above, in addition to an injunction, the Suit sought for compensation for articles that were taken away from the temple by some police officials of Respondent No.2 and damage caused. The decree of damages as set out above was sought in the name of the temple for the damage caused to it.

18. The record evidences that the Appellant’s claim to the subject matter of the dispute i.e., the suit land, is of a devotee of lord Shiva who worships in the temple situated on the suit land. The Appellant claims to be a resident of the locality and states that his grandfather was a worshipper in the said temple since 1969 which was built after a donation of land by the “landlords of the locality”.

19. It is further contended in the Plaint that various idols have been installed and construction/renovation of the temple is being undertaken pursuant to collections/donations received from persons of the locality.

20. The Respondent/DDA in its written statement filed before the learned Trial Court has set out that the suit land forms part of the government land acquired by an award no. 40/1978-79. The suit land after acquisition was handed over to the Municipal Corporation of Delhi which further handed over the same to Respondent/DDA for development of park. On the suit land, an unauthorised temple had been constructed and an area of approximately 200 sq. mtr. has been unauthorisedly occupied by constructing a boundary wall in July 2017. Pursuant to several complaints made to the police department including on 03.08.2017, 20.08.2017, 04.09.2017, 18.09.2017, 31.10.2017, 05.12.2017, 05.01.2018, 19.01.2018, 30.01.2018, 20.03.2018, 07.09.2018, 19.09.2018 and 10.10.2018, action was initiated to demolish the unauthorised construction over the government land. The demolition programme did not fructify on account of non-availability of police force. It was further stated that the unauthorised construction took place in the year 2017 and not prior thereto.

20.1. The Respondent/DDA further challenged the locus of the Appellant to file the suit in view of the fact that the Appellant had no right, title or interest in the suit land.

21. As stated above, the Impugned Judgment has found that the suit is barred since the pre-requisites of the provisions of Section 91 of the CPC have not been fulfilled by the Appellant prior to filing the suit. Section 91 of the CPC which deals with suits filed in the case of public nuisance and wrongful acts affecting the public, and sets out that the suit for declaration or injunction in the case of public nuisance may be instituted by the Advocate General or with the leave of the Court by two or more persons, even though, no special damage has been caused to such persons. Sub- Section (2) of Section 91 of the CPC provides that Section does not limit any right which may exist independent of this provision. Section 91 of the CPC is reproduced below:

22. Concededly, the suit which forms subject matter of the present Appeal has not been filed either by the Advocate General or with the leave of the Court, by two or more persons. The Appellant in the present case is the lone Plaintiff.

23. A plain reading of the Plaint shows that the suit has not been filed by a person claiming ownership, but by a “worshipper of a temple”. The suit prays for an injunction restraining the Respondent from removing deity and belongings from the Temple and restraining the demolition of the Shiv Temple and for directions to stop illegal gambling and intoxication happening around the temple, being the suit land. Thus, clearly the relief sought would come under the purview of public nuisance or wrongful acts affecting the public. However, as stated above, Section 91 of the CPC has not been adhered to.

24. The contention of the Appellant that the learned Trial Court overlooked the provisions of Section 91 of the CPC is without any merit. Sub-Section (2) of Section 91 of CPC has been set out by the learned Trial Court in the Impugned Judgment. The relevant extract is as follows: “As per Section 91 of CPC, in case of public nuisance or other wrongful acts affecting the public, a suit for declaration and injunction or for such other relief as may be appropriate in the circumstances of the case, may be instituted by the Advocate general or, with the leave of the Court by two or more persons even though no special damage has been caused to such person by reason of such public nuisance or other wrongful act. However, nothing in this Section shall be deemed to limit or otherwise effect any right of suit which may exist independently of its provisions.” [Emphasis supplied]

25. The Reliance placed by the Appellant on the judgment of a Coordinate Bench of this Court in Har Kishan Lal case is misplaced. The said judgment pertains to obstructions in a common courtyard in front of the shop of the Respondent shopkeeper and the blockage/obstruction which were created by Petitioners in that case. The Petitioners therein contended that the suit would not be maintainable in view of Section 91 of the CPC. The Court held that it is not a public street in which nuisance can be created rather common courtyard leading to Respondent Shop and that the business of the Respondent was being affected by the construction of steel racks in the common corridor and thus, the Court further held that the Respondent had an independent right to file a suit. The relevant extract is below:

5. The learned Counsel for the petitioners, however, forgets that Section 91(2) makes it clear that nothing in this section shall be deemed to limit or otherwise affect any right of suit which may exist independently of its provisions. It is obvious that if a particular right of suit arises in favour of a particular person, even if there is public nuisance, even then such right of suit is not affected by provisions of Section 91(1) of the Code of Civil Procedure.

6. In the present case, it is not any public street in which any nuisance is being created so that it could be treated as a public nuisance, as contemplated by Section 91 of the Code of Civil Procedure. The act of the petitioners, which is complained of, has occurred on a common courtyard to which the customers visiting the shops on the first floor have right of access besides the shops are located on the first floor. Assuming for the sake of arguments that it has also some element of public nuisance as customers generally can visit the said place without any hinderance, even then the cause of action has accrued to the plaintiff as his individual rights are being affected by the acts of the petitioners/defendants. It is the business premises of the respondent/plaintiff which are being affected allegedly by the construction of the said steel racks and thus, it is evident that respondent/plaintiff has an independent right to sue in respect of the alleged acts of the petitioners even if those acts of the petitioners may also amount to public nuisance as well. Section 91(2) of the Code of Civil Procedure clearly gives the right to file a suit which is independent of the provisions of Section 91(1).”

26. Since, the Appellant does not have any independent right to a sue qua the suit land, sub-Section (2) of the Section 91 of the CPC would not apply to the present case. The learned Trial Court’s order stating that the suit is barred by Section 91 of the CPC is, thus, affirmed.

27. The Appellant has also cited other judgments including Ram Janmabhumi case that his right to worship is a civil right and cannot be taken away and a civil suit enforcing the same is maintainable. No doubt, it is settled law that the right to worship is a civil right and can be the subject matter of a suit, however, the suit filed by the Appellant is not such a suit. The Appellant has not claimed that he is being stopped or obstructed from worshipping in any legitimate temple in any manner. The judgments cited by the Appellant have no application in the present case. What is being sought to be done by the Appellant is to enforce a nonexisting right in an immovable property/temple which is constructed illegally, as well as a boundary wall which has been constructed around that temple. Thus, the civil right to worship of the Appellant is not being interdicted by any person or authority.

28. The Appellant has relied upon the judgment of the Supreme Court in Deoki Nandan v. Murlidhar and Others10 to submit that worshippers are the true beneficiaries of religious endowments and have a personal interest in the matters of worship. The issue involved in this case was whether a temple in a village in Sitapur district is a private temple or is a public one. It was in this context that the Supreme Court held that under the Hindu law, an idol is a juristic person capable of holding property. The judgment was passed in the context of determining whether an endowment is a public or private endowment and not in the context of personal rights and is inapplicable in the context of the present case.

29. Section 41 of the SRA sets out certain situations where injunctions cannot be granted. These include where the Appellant has no personal interest in the matter. The Supreme Court in Premji Ratansey Shah case has held that an injunction cannot be given for a mere asking but may be given to protect the possession of an owner or a person in lawful possession of a property. It further held that no injunction can be issued in favour of a trespasser or a person in unlawful possession of a property and 1956 SCC OnLine SC 12 that the pretext of dispute of the identity of the land should not be an excuse to claim injunction. The relevant extract is below: “4. …The question, therefore, is whether an injunction can be issued against the true owner. Issuance of an order of injunction is absolutely a discretionary and equitable relief. In a given set of facts, injunction may be given to protect the possession of the owner or person in lawful possession. It is not mandatory that for mere asking such relief should be given. Injunction is a personal right under Section 41(j) of the Specific Relief Act, 1963; the plaintiff must have personal interest in the matter. The interest of right not shown to be in existence, cannot be protected by injunction.

5. It is equally settled law that injunction would not be issued against the true owner. Therefore, the courts below have rightly rejected the relief of declaration and injunction in favour of the petitioners who have no interest in the property. Even assuming that they had any possession, their possession is wholly unlawful possession of a trespasser and an injunction cannot be issued in favour of a trespasser or a person who gained unlawful possession, as against the owner. Pretext of dispute of identity of the land should not be an excuse to claim injunction against true owner.”

30. The Appellant has relied on a newspaper article of the Hindi daily Newspaper. The article is dated 05.10.2009 and states that the Respondent/DDA owns more than 1000 sq. feet of land in that area and that, two years back i.e., in 2007, the Shiv Mandir, that was situated there was demolished by the DDA but the “Shivling” was placed under a tree in the premises and was not removed. This document in fact supports the contentions of Respondent/DDA that previously there was an unauthorised structure which was demolished in the year 2007. Thus, quite clearly the contentions of the Appellant in the present case are belied from his own documents.

31. The Shiv Temple/the suit land is concededly in a public park which is owned by Respondent/DDA. The record reflects that what the Appellant/other residents of the area have done is that 200 sq. mts. of the park has been unauthorisedly occupied and a boundary wall has been constructed to claim title or exclusive possession to the suit land. In the garb of a suit for injunction, the Appellant has succeeded in restraining the demolition of an unauthorised construction in a public park for the last several years. This cannot be countenanced by the Court.

32. Admittedly, the Appellant has no right or title in the suit land. The Respondent/DDA has undertaken the exercise of removing unlawful encroachment on government property and this Court finds no reason to interdict the same.

33. Accordingly, the Appeal and pending Application are dismissed. Resultantly, the interim protection granted to the Appellant by this Court on 19.05.2023 stands vacated.

TARA VITASTA GANJU, J OCTOBER 04, 2024/pa/r