RADHEY SHAM Vs. LT GOVERNOR

JUDGEMENT

(1.) This is an application for a certificate under Article 133(1)(c) of the Constitution that the dismissal of the petitioner's Civil Writ Petition No. 550 of 1969 by a Division Bench of this Court is a case fit for appeal to the Supreme Court. By the said writ petition, the petitioner challenged the order dated 27th June 1969 which the Lieutenant Governor of Delhi purported to make under section 487 of the Delhi Municipal Corporation Act, 1957, on the ground that on the face of it the order was ultra vires section 487 and also invalid for other reasons. The learned Judges of the Division Bench however considered only the question whether the petitioner had a locus standi to challenge the impugned order and held as a preliminary question of law that the petitioner was an utter stranger who had no locus standi to file the petition. The order dismissing the petition raises two important questions of constitntioual law, namely :-

(2.) The dispute relates to the use of a plot of a land about 750 sq. yards in an entirely non-muslim locality called "ahata Kidara near Idgah" Delhi situated within the limits of the Delhi Municipal Corporation. The petitioner claims to be ratepayer and a neighbour residing within 30 or 40 yards from it. The respondents are ( 1) Lieutinent Governor, Delhi Administration, (2) Delhi Wakf Board, (3) Union of India, (4) Commissioner, Wakf Board, (5) Commissioner, Municipal Corporation of Delhi and (6) Delhi Development Authority. According to the petitioner, the Delhi Municipal Corporation and the Delhi Development Authority, this is vacant Nazul land of the Government under the management of the Delhi Development Authority. The Secretary of Delhi Wakf Board says that it is wakf property. The Union of India and the Lieutenant Governor contrary to their previous stand now support the Wakf Board though their learned counsel Shri R. Mehta told us that he was instructed not to oppose the present application. The Commissioner of Wakfs did not care to appear. No material was placed on record to show that the land is wakf property. Under section 4 of the Wakf Act, 1954, a survey of wakf property is made by the Commissioner of Wakfs and a report by him is published under section 5. In the present case, no such report of the survey is produced to show that the land is wakf property. Under section 5 of the said Act, every wakf has to be registered at the office of the Wakf Board and under section 26, the Wakf Board has to maintain a register of wakfs showing the particulars of all wakf properties and title deeds and documents relating thereto: There is no entry in the said register showing this land as belonging to any wakf.

(3.) On the pleadings and the documents on record, the land appears to be public property. Even Shri D. D. Chawla, learned counsel for the Wakf Board, did not seriously contest the application on the ground that the land was wakf property but argued against it on the assumption that the land was public property. In 1910, the Wilson Survey of Delhi showed the land as an open land vested in the Government. On 18-5-1956 in its Resolution No. 183 the Delhi Municipal Committee approved the said land for being laid out as a childrens' park. The Delhi Improvement Trust, therefore, requested the Delhi State Government on 7-11-1956 to obtain the approval of the Central Government to the transfer of the land to the Delhi Municipal Committee. The Delhi Development Authority which had in the meantime come into being approved by Resolution No. 132 dated 26-3-1958 that the land be allotted to the Delhi Municipal Corporation (which had in the meanwhile suceeded the Delhi Municipal Committee) for laying out a childrens' park. At this stage, it was found that due to an unauthorised construction made by some Muslim squatters, the land could not be handed over to the Delhi Municipal Corporation.