Full Text
HIGH COURT OF DELHI
Date of Decision: 2nd May, 2023
55/2022, 40548/2022, 43723/2022, 53179/2022, 876/2023, 14509/2023, 15812/2023, 15813/2023 13658/2023, 22230/2023
NEETA BHARDWAJ & ORS. ..... Appellants
Appearances:- Mr. Arun Birbal, Mr. Sanjay Singh & Ms. Sonia Singhania, Advocates for
DDA. (M:9958118327)
Mr. Neeraj Bhardwaj & Mr. Rahul Bhardwaj, Advocates.
Mr. Lokesh Bhardwaj, Advocate. (M:9971576388)
Mr. Kush Bhardwaj, Advocate. (M:9891074686)
Ms. Samapika Biswal and Mr. Aman Kumar Yadav, Advocates for Ld.
Administrator. (M:9406951592)
Mr. Zoheb Hossain, Amicus Mr. Luv Bhardwaj, Advocate (M-9990693140)
Mr. Siddharth Panda and Mr. Ritank, Advs. for SDMC. (M:9891488088)
Mr. Thakur Sumit, Advocate.
Mr. Vishal Bhardwaj, Advocate Mr. Ishkaran Singh, Advocate for 19 shopkeepers. (M:9582021885)
Mr. Paul Kumar Kalai and Mr. Kaoliangpov Kamei, Advs for Petitioner.
(M:8376813694).
Mr Prabhas Chandra, Advocate.
Mr. R.K. Bhardwaj, Advocate (M: 9312710457).
Mr. Rajmangal Kumar (M: 9871211544).
Mr. Goonmeet Singh, Architect.
Mr. Rakesh Kumar, SHO.
Mr.Rajeev Kumar Chauhan, Advocate for Unregistered Vendors.
Ms. Himanshi Kaushik, Architect.
Mr. S. Sasibhushan, Advocate.
Mr. Sarvesh Bhardwaj, Advocate.
Mr. Vipul Gaur, Advocate.
Mr. Anuj Chaturvedi, Advocate for DUSIB (M: 9810473166).
Mr. Ramesh Kumar Mishra, Advocate.
Mr Anuroop P S, Advocate (M: 9582818838).
Mr. Aly Mirza and Mr. Parbhash Kumar, Advocates (M: 9899720945).
Mr. Aditya, Mr. Kamlesh Kumar Mishra, Mr. Kailash Kumar Jha, Mr. Raghunath Pathak and Ms. Shivalika, Advocates (M: 8699723746).
Mr. Akarshan Bhardwaj and Ms. Garima Anand, Advocates (M:
9711549953).
JUDGMENT
1. This hearing has been done through hybrid mode.
2. These matters pertain to the Kalkaji Mandir, which this Court has been hearing from time to time. These are part-heard matters. Construction activities on land adjoining to the Kalkaji Mandir & Lotus Temple
3. On the last date of hearing, it was brought to the attention of the Court that fresh construction and excavation was being done in the land adjoining the Kalkaji Mandir and the Lotus Temple. The Court was informed that the said activities were being carried out by a third party i.e M/s Eswara Kamdhenu Restaurant Pvt. Ltd. to whom the land in question was stated to have been leased by DDA. On the said date, certain photographs of the construction activities were also handed over to the Court. The Court had also directed DDA to place on record the nature of arrangement with the said third party carrying out construction on the land adjoining the Kalkaji Mandir and the Lotus Temple by 28th April, 2023.
4. Today, Mr. Birbal, ld. Counsel, at the outset, submits that he has filed an affidavit on behalf of DDA, however, the same is not yet on record. A copy of the same has been handed over to the Court. As per the said affidavit, around 60 sites whose inventory was available with the Engineering/ Horticulture Department of DDA were put on e-auction on 21st October, 2022 for the purposes of marriage, social, cultural and religious functions on a license fee basis.
5. Certain bids are stated to have been received and pursuant thereto, 23 open sites including the site called “DDA land adjoining green area at Kalkaji Mandir” admeasuring 9,000 sq. meters is stated to have been licensed out to M/s Eswara Kamdhenu Restaurant Pvt. Ltd. for a period of 36 months starting from 1st November, 2022 on a monthly license fee of Rs. 28,91,120/-. The said site is stated to have been handed over on 28th December, 2022. The submission of DDA is that the land belongs to DDA and there is no embargo on using the same. Temporary structures are being erected by the said Licencee on the said land.
6. In the present matter relating to the Kalkaji Mandir, the Court is undertaking the exercise of demarcation of land as also the redevelopment of the Kalkaji Mandir. The DDA has been a party in these proceedings right from inception. The construction which was recently commenced adjoining the Lotus Temple and the Kalkaji Mandir was brought to the notice of the Court on the last occasion. The Court had observed vide order dated 19th April 2023, that since demarcation was yet to be finalised, DDA could not have entered into an arrangement with a third party. The observations of the Court are extracted below:
7. Photographs/images of the construction being undertaken on the land adjoining the Kalkaji Mandir shown to the Court by the Petitioners are as under:
8. Today, black and white photographs of the construction have been also been handed over to the Court by Mr. Birbal, ld. Counsel for DDA which are as under:
9. A perusal of both sets of photographs shows that large scale construction is sought to be erected on the land. It is claimed by the DDA that the said construction is temporary in nature. However, clearly, a perusal of the images leaves no doubt in the mind of the Court that any construction of the nature being undertaken would affect the view of the Lotus Temple. Moreover, this land is adjoining the Kalkaji Mandir, the redevelopment of which is being considered.
10. The demarcation report prepared in 2012 in respect of Kalkaji Mandir was objected to by DDA due to which demarcation could not be finalized. There seems to be some dispute as to the area of land belonging to DDA. Thus, steps are being taken to clearly demarcate the land of the Mandir and the DDA.
11. Since inception, the stand of DDA was always that the Kalkaji Mandir area is a green area, however, suddenly the said land seems to have been demarcated by DDA on its own and large-scale construction is being undertaken. This stance of the DDA has been recorded in the order dated 15th March, 2023 passed by this Court:
15. Insofar as the creation of temporary shops and kiosks for catering to the devotees in the Kalkaji Mandir premises is concerned, Mr. Birbal, ld. Counsel appearing for DDA and SDMC, submits that this ought not to be permitted as the Master Plan for Delhi 2021 shows that the Kalkaji Mandir area as green area.
12. The said stance is also reflected in the Minutes of Meeting dated 13th March, 2022, which were filed after a joint survey of the Kalkaji Mandir premises was undertaken by the DDA, DUSIB, and SDMC from 8th March, 2022 to 12th March, 2022 as also in the status report of DDA dated 17th November, 2021. The relevant parts of the same are as under: “Minutes of Meeting dated 13th March, 2022 It was also discussed that in the Master Plan of Delhi, 2021 the area where the Kalkaji Temple exists, is shown as Green Area. Thus, steps would have to be taken by the Kalkaji Temple authorities to file an application with the DDA under Section 11 A of The Delhi Development Act, 1957 for modification of the Master Plan to reflect the area in the Master Plan as per its usage. Once an application for modification in the Master Plan is received, the requisite steps as per the procedure laid down in the statute shall be undertaken by the DDA.”
XXX XXX XXX Status Report of DDA Land Existing at Kalkaji Mandir Area dated 17th November, 2021 In reference of Notice/DDA/7/ Dt. 12.11.2021 sent by Justice J.R. Midha (Retd.) Ld. Administrator of Kalkaji Mandir appointed by the Hon’ble Delhi High Court the status report belonging to the DDA land at the Kalkaji Mandir Complex is as under. The following Khasra Nos of Village Bahapur Kalkaji Mandir Complex which pertains to DDA. Khasra No. Area Details 560/2 4Bigha-05Biswa (Green Area) Acquired vide award no.2059 dt. 24.01.1968 and placed at the disposal of DDA vide notification u/s 22(i) F8(49)/63/L&H dt. 30.05.1972. Further transferred to Horticulture dept. since 06.05.1971 ”
13. Considering the location of the land which is right next to the Kalkaji Temple and the Lotus Temple and the nature & extent of construction that is being sought to be erected, it is clear that the skyline in the area is likely to be affected. The images also show that the view of the Lotus temple is also being obstructed. Accordingly, subject to further examination, and to ensure that the redevelopment of the Kalkaji Mandir is not adversely affected, it is directed that the DDA or the contractor/ licensee on its behalf shall cease construction on this land.
14. At this stage, Mr. Birbal, ld. Counsel, submits that DDA should be permitted to use the land for social and religious functions, etc. Let an affidavit be placed on record giving the details as to when was the last time this particular area of land was used for any such functions or whether it was maintained as a green area by DDA. Photographs shall also be placed on record. The affidavit shall be placed on record within two weeks.
15. Upon the said affidavit being received by the Court, modification of the above directions shall be considered by the Court.
16. Copies of the DDA’s affidavit be served upon the Petitioners and the ld. Administrator shall file the responses, if any, within four weeks. Redevelopment of the Mandir
17. On the last date of hearing, the Court had directed the Court appointed architect – Mr. Goonmeet Singh Chauhan, to hold a meeting with the Pujaris for the purpose of getting inputs with regard to the redevelopment of the Mandir. Today, Minutes of Meeting dated 29th April, 2023 have been placed on record by Ms. Biswal, ld. Counsel for the Administrator. The Minutes have been perused by the Court. The general stand of the Pujaris and Baridaars is that no part of the Mandir Complex ought to be used for commercialisation. However, the only exception to that would be some shops for the purposes of making available puja samagri, flowers, prasad etc. for the devotees. For the said purpose, the pujaris and baridaars are acceptable to the position that a specific area be carved out in the master redevelopment plan within the Mandir premises itself for the creation of some shops.
18. The modalities in which the said shops shall be allocated, used and the license fee which would be payable shall be discussed between the Court appointed architect, the ld. Administrator and the pujaris/ baridaars. Thereafter, a joint proposal shall be filed by the next date of hearing. Disputes relating to the Dharamshalas
19. Insofar as the Dharamshalas are concerned, there are two sets of Pujaris who have been heard by the Court. The Court appointed architect, Mr. Chauhan and ld. Counsel for the Administrator have also been heard.
20. Ms. Garima, ld. Counsel appearing for one faction of 45 pujaris submits that there is a distinction between pujaris who are land owners and those who are not. She submits that she represents the pujaris who are land owners. It is her submission that in SLP(C)19064-19065/2022 titled Ved Prakash Bhardwaj v. Neeta Bhardwaj, interim protection has been granted to them with respect to dispossession from dharamshalas. It is her submission that their possession is not to be disturbed. The ld. Counsel further submits that the Supreme Court while granting stay has, clarified that there shall be no impediment in carrying out the re-development of the Mandir.
21. The stand of Ms. Garima, ld. Counsel that 45 pujaris are land owners is disputed by a large number of Pujaris and Baridaars. They rely upon a judgment dated 28th December, 1955 passed by Sub-Judge, 1st Class, New Delhi, passed against the families claiming ownership rights in the Mandir premises, holding that there is no ownership right in favour of any individual or group of individuals. The said judgment is stated to have been upheld by the Delhi High Court vide order dated 10th April, 1964. This position is disputed by Ms. Garima, ld. Counsel.
22. Ld. Counsel representing the group of 45 pujaris further submits that they do not agree for a separate area to be demarcated for the dharamshalas.
23. There is a dispute between the ld. Counsels for Baridaars/Pujaris as to the issue that is pending before the Supreme Court. For the time being, however, since redevelopment has already been directed to be proceeded further, the following directions are passed: i) In the overall redevelopment plan, specific area for dharamshalas shall be demarcated. Mr. Chauhan submits that the areas of 2000 and 2500 sq. mtrs. have broadly been identified. In the said areas, which have been identified, dharamshalas shall be constructed by the pujaris and baridaars on their own. However, the said dharamshalas shall be the shared property amongst all the pujaris and baridaars and shall not belong to any one individual or group of individuals. This position is in consonance with the view taken by the Court in the order dated 1st June, 2022 which is as under:
24. Needless to add, the above directions are subject to any orders that may be passed in the pending SLP.
25. The objection of the set of 45 pujaris is recorded to the effect that their possession ought not to be disturbed from the current dharamshala. It is clarified that, at the moment, only the redevelopment plan is being considered. There are various steps which may be required to be taken before the redevelopment on ground can actually be started.
26. Insofar as main bhawan and the smaller temples are concerned, the ld. Administrator in the Minutes of meeting records as under:
31. No objection has been raised in respect of the above extracted suggestions. In terms of the above agreed terms of redevelopment, let the final redevelopment plan be placed by the Court appointed architect before the Court by the next date of hearing. Issue of the Registered Street Vendors
32. Ld. Administrator in his report dated 18th April, 2023 has stated that MCD has verified that 49 additional street vendors have certificate of vending/ registration slips.
33. Let the MCD file a specific affidavit confirming as to the number of vendors, who are registered with it for the purpose of street vending and who ought to be permitted to sell their wares outside the Kalkaji Mandir.
34. Issue notice in CM APPL.22230/2023 under order I Rule 10 CPC in FAO 36/2021.
35. List on 25th May, 2023 at 4:00 pm.
PRATHIBA M. SINGH JUDGE MAY 02, 2023 Rahul/dj/mr/dk