[Right to Way] Delhi High Court permits demolition of parts of Mandir and Masjid to make the pedestrian pathway uniform

Delhi High Court: In a case wherein a petition was filed by the caretakers and bearers of the Sanatan Dharam Mandir/Prachin Shiv Mandir to challenge the letter issued by the Executive Engineer, Civil, GNCTD directing removal of encroachments and unauthorized occupation of PWD land, a Single Judge Bench of Prathiba M. Singh, J. opined that the larger public interest would outweigh the concerns raised by both the places of worship, that is, Mandir and Masjid and therefor, permitted demolition of parts of Mandir and Masjid to make the pedestrian pathway uniform.

Background

The petitioner contended that the Mandir had not done any unauthorized encroachment and the removal of the same would cause inconvenience to the devotees who visited the Mandir regularly. It was submitted by GNCTD and PWD that the action of removal was being taken pursuant to the order passed by the Land and Development Office (L&DO) and the L&DO stated that there was no space adjacent to the Mandir which could be allotted to the Mandir for extending the premises. During the hearing, it was brought to the notice of the Court that another place of worship, that is, a Masjid which was being run by the Delhi Wakf Board was also located adjacent to the Mandir. Therefore, a notice was issued to the Delhi Wakf Board in this respect and as per the status report submitted by PWD, the present width of the footpath in front of the Masjid was only 2.26 metres on the southern side and 2.128 metres on the northern side, which was stated to be insufficient for the pedestrian pathway.

Submissions on behalf of the Petitioners

It was submitted that when DMRC was carrying out its development work for the metro station, the Masjid was affected and was rebuilt by the DMRC, and the Masjid catered to the members of the Muslim community in the nearby offices and local dwellers. It was also submitted that while on one side of the road, the pedestrian pathway of 6 metres was being insisted upon, on the opposite side where there were many commercial buildings, there was no pedestrian pathway. Further, the devotees who visited the Masjid also required a place for ablution during prayer and thus, there was no alleged encroachment which was liable to be removed.

It was also submitted that the area in front of the Mandir was sufficient for the pedestrian pathway and in any case, the Mandir had been there for a long period and was not an illegal encroachment and even if the Court recognized the Mandir as an encroachment, the GNCTD would impose damages/penalties for illegal occupation which the Mandir would not be able to pay.

Analysis, Law, and Decision

The Court noted that the issue involved in the present case was concerned with the development of the pedestrian pathway in an extremely busy road. The Court opined that the photographs which were placed on record clearly showed that the Mandir and Masjid were abutting the pedestrian pathway and that there was no uniformity in the pedestrian pathway and the same needed to be made uniform and matched along with the pedestrian pathway across the entire stretch of the road, failing which, pedestrians’ safety would be seriously affected.

The Court further opined that the conflict faced in cases like the present one was the striking of balance between the larger public interest and the interest of the devotees. The Court relied on Gulam Kadar Ahmadbhai Menon v. Surat Municipal Corporation, 1998 SCC OnLine Guj 119, wherein it was held that “if such places of worship were taken away for the purposes of carrying out the expansion of the road, it would not mean in any manner that a religious structure was being disrespected”.

Thus, this Court opined that the larger public interest would outweigh the concerns raised by both the places of worship, that is, Mandir and Masjid. The Court thus held that “places of worship could not encroach public land and hinder developmental activities meant for larger segment of the public”.

The Court also held that to make the pedestrian pathway uniform and to not cause inconvenience to the pedestrians on the said busy stretch of the road, which also had access to the Delhi Metro Station, the PWD ought to be permitted to make the pedestrian pathway uniform and for the said purpose, if some portion of the Mandir and Masjid was to be broken/demolished, the same would have to be permitted by the Court.

The Court issued the following directions that had to be complied with:

1. The concerned Executive Engineer of the PWD would confer with the caretakers of both the Mandir and the Masjid and arrive at a consensus as to the time and the date on which the said demolition would take place and since the wall of both the Mandir and the Masjid were abutting the pedestrian pathway, the walls would be required to be demolished. If upon conferring with the said caretakers, there was a need to make some fresh construction to secure area of the Mandir and the Masjid, the same should be done at the cost of the PWD.

2. Both the Mandir and the Masjid or their occupants, should not be treated as unauthorized occupants and no penalties and/or damages would be liable to be levied against them.

The Court disposed of the petition and directed the Delhi Police to provide cooperation and necessary assistance to ensure that the above directions were implemented without any disturbance or law and order situation.

[Devendra Kumar v. State (NCT of Delhi), 2023 SCC OnLine Del 1012, decided on 23-2-2023]

Advocates who appeared in this case :

For the Petitioners: Advocate Hemant Choudhary;

Advocate Sumit Gupta;

Advocate Haider Ali;

For the Respondents: ASC Gautam Narayan;

Senior Panel Counsel Raj Kumar;

Standing Counsel Wajeeh Shafiq;

Advocate Asmita Singh;

Advocate Unmukt Gera;

Advocate Harshit Goel;

Advocate Sabika Ahmad;

Advocate Pushkar Sood;

Advocate Satya Prakash Singh.

*Judgment authored by: Justice Prathiba M. Singh.