Delhi HC Dismisses Worshipper's Plea Seeking Injunction Against Demolition Of Unauthorised 'Shiv Temple' In Public Park

The Court upheld the decision of the Trial Court wherein it was held that suits under Section 91 of the CPC concerning the public can only be instituted by the Advocate General or with the leave of the Court. The Appellant, claiming to be a local resident and worshipper at the Shiv Temple (suit land), filed a suit for permanent and mandatory injunction along with damages exceeding Rs. 3 lakhs against the Respondents [Delhi Development Authority (DDA) and Police].

While acknowledging that a suit to offer prayer was civil in nature, the Trial Court noted that the Appellant must have a personal interest in seeking an injunction regarding an immovable property.

A Single Bench of Justice Tara Vitasta Ganju observed, “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.”

Advocate Aditya Raj appeared for the appellant, while SC Shobhna Takiar represented the respondents.

The Appellant alleged that the DDA intended to demolish the Shiv Temple, which was built on the suit land. It was contended that the police took no action despite there being complaints about certain “bad elements” of the locality who had started using the park for illegal gambling and imbibing alcohol etc. It was further argued that the appellant’s independent right to sue was protected by Section 91(2) of the CPC.

The DDA on the other hand filed a written statement which set out that the suit land was acquired by the government and was then handed over to the DDA.

The Trial Court dismissed the application with costs filed under Order XII Rule 6 of the CPC holding that the appellant had no locus standi. The co-ordinate bench of the High Court did not interfere with this order except to the extent that the costs imposed on the Appellant were reduced.

The High Court noted that even though the suit land was concededly a public park owned by the DDA, the appellant and other residents of the area had unauthorisedly occupied it and created a boundary wall to claim title or exclusive possession.

The Bench further noted that the Appellant’s claim to the subject matter of the dispute was based on him being a devotee of lord Shiva and 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”.

“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…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,” the Court remarked.

The Court clarified that the Supreme Court in M. Siddiq (Ram Janmabhumi Temple-5 J.) v. Mahant Suresh Das (2020) had held that the right to worship was a civil right and could be the subject matter of a suit. However, the appellant in this case was not being obstructed from worshipping in any legitimate temple in any manner.

Therefore, the Court observed, “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.”

Consequently, the Court held that “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.”

Accordingly, the High Court dismissed the appeal.

Cause Title: Avinesh Kumar v. Delhi Development Authority & Anr. (Neutral Citation: 2024:DHC:7681)

Appearance:

Appellant: Advocates Aditya Raj and Anju Agarwal

Respondents: SC Shobhna Takiar; Advocates Lalitha Malhotra and Kuljeet Singh

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