Gujarat High Court Case Information System
Print
SCA/3766/2011 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 3766 of 2011
=========================================
ABDUL
VADUD AHMEDMIYA JARULLAH MUTAVALI (TRUSTEE) OF PATVA - Petitioner(s)
Versus
UNION
OF INDIA THROUGH SECRETARY & 4 - Respondent(s)
=========================================
Appearance :
MR
M M TIRMIZI for
Petitioner(s) : 1,
None for Respondent(s) : 1 - 3,
MR JANAK
RAVAL, AGP for Respondent(s) :
4-5
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE D.H.WAGHELA
Date
: 04/05/2011
ORAL
ORDER
1. The
petitioner has invoked Articles 14, 226 and 227 of the Constitution
for an appropriate writ, order or direction to the Union of India and
the Director General, Archaeological Survey of India, to declare the
buildings of Municipality and Patva Masjid, situated at Ward No. 11,
Surat, as ancient monuments-protected monuments under Section 4 of
the Ancient Monuments and Archaeological Sites and Remains Act, 1958.
It is the case of the petitioner that the buildings in question were
constructed in the year 1644 A.D. and the petitioner is the Mutavali
(Trustee) of Patva Masjid, which is a Trust registered under the
Bombay Public Trusts Act, 1950. A legal notice dated 18.12.2010
is already issued at the instance of the petitioner to the
Commissioner of Surat Municipal Corporation to stop construction in
the area adjoining to the Patva Masjid on the basis that the
structures in question of Patva Masjid is more than 400 years old and
necessary procedure is initiated for declaring it to be protected
monument and heritage monument. The petitioner is also stated to have
sent an application, through an advocate, dated 22.12.2010 to the
Director General, Archaeological Survey of India, New Delhi, Dy.
Director, Archaeological Survey of India, Secretary, Department of
Culture and Hon’ble the Prime Minister of India, with the prayer to
make necessary inquiry and to declare the buildings of Humayusarai,
used as office of Surat Municipal Corporation, as ancient monument
and archaeological site under the provisions of Section 4 of the
Ancient Monuments and Archaeological Sites and Remains Act, 1958.
2. Admittedly,
there is in force, a previous order dated 02.02.1999 of this Court in
Special Civil Application No. 2690 of 1996 recording
consensus about leaving open passage of the width of five feet for
ingress or egress for the use of visitors visiting the Patva Masjid.
A letter dated 20.03.1998 of the Managing Trustee of Patva
Masjid conveying some agreement or understanding is taken on record
in that proceeding.
3. The
main grievance of the petitioner is that nothing appears to have
happened pursuant to aforesaid application dated 22.12.2010. Even as
the petitioner was not in a position to even prima facie
establish that, that application was sent to and served upon the
addressees, straightaway reliance was placed upon the provisions of
Section 4 of the Act which require formation of an opinion that any
ancient monument or archaeological site is of national importance and
notification in the official gazette giving two months notice of the
intention to declare such ancient monument or archaeological site to
be of national importance. Thereafter, such monument or site and
remains may be declared to be of national importance. Thus, the
petitioner is, in effect, seeking a writ of mandamus directing the
Central Government to form an opinion at the behest of the
petitioner. There is no legal right vested in the petitioner or
corresponding duty cast upon the Government to form any opinion or to
initiate any proceeding under Section 4. Therefore, prima facie
the petition for writ of mandamus of this nature would not be
maintainable. Apart from that, the petitioner does not seem to have
cared to even serve proper legal notice upon the appropriate
authorities or to enquire about the process carried out on his
earlier application dated 22.12.2010, which is supposed to have been
sent through an advocate. Therefore, the petition is found to be
premature and lacking in
bona fide pursuit of a genuine cause. Therefore, the petition is
dismissed at this stage with liberty to the petitioner to pursue the
matter with the appropriate authority and to approach this Court, in
case of necessity when a proper petition may be maintainable.
[D.H.WAGHELA,
J.]
JYOTI
Top