HIGH COURT OF CHATTISGARH : BILASPUR
WRIT PETITION NO 2625 OF 2005
Jama Masjid Sunni Halwai Lane Raipur & Others
...Petitioners
Versus
State of Chhattisgarh & Others
...Respondents
! Shri Ravish Chandra Agrawal Senior Advocate with Ms Fouzia Mirza Ms Farah Minhaz & Shri R K Pali Advocates for the
^ Shri Kishore Bhaduri Additional Advocate General with Shri Ajay Dwivedi Deputy Government Advocate for the State respon
CORAM: Honble Shri Satish K Agnihotri J
Dated: 09/05/2011
: Judgement
O R D E R
(Delivered on this 09th day of May, 2011)
(Writ Petition under Article 227 of the Constitution of
India)
1. By this petition, the petitioners, firstly; seek a
direction to the respondents No.1 to 3 to cancel the lease,
if any, granted to the respondent No.5 and/or to revoke the
same. Secondly; a direction be issued to the respondents
No.1 to 3 to correct the revenue record with respect to
Khasra No.736 of Civil Station (Civil Lines), Raipur, which
are recorded as plot No.8/1 to 8/4 block No.16 total area
34883 sq.ft. Thirdly; quashing the proceedings pending
before the Nazul Officer, Raipur, being without jurisdiction
and a last prayer was added by amendment, ordered on 6-4-
2010, that the order dated 31-7-2004 passed by the Nazul
Officer in Revenue Case No.80/B-12/2003-04, as also against
the order dated 15-9-2004 passed by the
Nazul Officer, Raipur in Revenue Case No.80/B-121/03-04,
order dated 14-6-2005 passed by the Additional Collector,
Raipur in Revenue Case No.121/2-B/2004-05.
2. The indisputable facts, in brief, as projected by the
petitioners, for proper adjudication of the case, are that
the first petitioner – Jama Masjid is a public trust
registered with the Registrar of Public Trust, Raipur. The
trust has immovable properties including the
petition-schedule land known as Risali Naka, Eedgah-Kabristan
admeasuring 38082 sq.ft. After the Indian Wakf Act came into
force, the said property was registered as a wakf property
with the Wakf Board, Bhopal.
3. The respondent No.5 – M/s Raipur Transport Company Pvt.
Ltd., was granted a lease of 14880 sq.ft. out of the said
land, which was revoked on the application of Munshi
Mehruddin and renewal was refused in 1965. The khasra
No.736/89 of Civil Lines, Raipur, and shown as Risali Naka,
Eedgah-Kabristan, was divided into block No.16, plot No.8/1
area of 18353 sqft., plot No.8/2 area of 70 sq.ft., plot
No.8/3 area of 14880 sq.ft. and plot No.8/4 area of 810
sq.ft. Total area 34113 sq.ft.
4. There is pre-existing graveyard and many graves are
still there. Despite grant of lease, the respondent No.5 was
never in physical possession of the petition-schedule land.
On the application of Munshi Mehruddin made in the year 1965,
on spot inspection, a discrepancy was found in allotment of
lease of plot No.8/3 of block No.16 granted to the respondent
No.5. It was recommended to treat the whole area of khasra
No.736/89 as Kabristan. It is a wakf property under the
management and control of Jama Masjid, Raipur.
5. The respondent authorities have handed over the
possession of the said land to the respondent No.5. The
Nazul Officer by order dated 31-7-2004 (Annexure – P/9)
directed the petitioners to remove the encroachment from
khasra No.736, block No.16, plot No.8/3 area of 14880 sq.ft.
Thereafter, on 15-9-2004, the Nazul Officer after having
heard both the parties observed that Fourth Civil Judge,
Civil Court, Raipur, has passed an interim injunction holding
that the respondent No.5 was in possession and ownership of
the petition-schedule land, thus it was held that the
respondent No.5 was the owner of the petition-schedule land.
It was further held that the land in dispute was not the
property of Sunni Muslim.
6. Since the petitioners have not complied with the order
of Civil Court, the order of encroachment was passed
accordingly for non-compliance of the order
passed by the Civil Court. Order of removal of encroachment
was passed on 15-9-2004 (Annexure – P/11)
that is under challenge in this petition. Thereafter, the
Additional Collector, Raipur, in appeal, by impugned order
dated 14-6-2005 (Annexure – P/12) dismissed the appeal filed
by Jama Masjid finding the order passed by the Nazul Officer
as just & proper. Thus, this petition.
7. Shri Agrawal, learned senior counsel appearing with Ms.
Fouzia Mirza, Ms. Farah Minhaz & Shri R.K. Pali, learned
Advocates for the petitioners, would submit that the impugned
orders passed by the authorities are without jurisdiction.
The respondent No.3 could not have passed the order of
removal of encroachment in a proceeding under Section 129 of
the Chhattisgarh Land Revenue Code, 1959 (for short “the
Code, 1959”). Shri Agrawal would further submit that the
respondent No.5 was never in possession of the land, thus the
proceedings under Section 250 of the Code, 1959 could not
have been initiated. The action of the respondent authorities
is politically motivated and the impugned order was passed on
the basis of instructions received from the office of the
Chief Minister as well as the Home Minister. The respondent
authorities failed to consider the report of Annexure – P/5
submitted by the Extra Assistant Commissioner.
8. On the other hand, Shri Kishore Bhaduri, learned
Additional Advocate General appearing with Shri Ajay Dwivedi,
learned Deputy Government Advocate for the State/respondents
No.1 to 4, would submit that the allegation that the Nazul
Officer has acted on undue pressure of the office of the
Chief Minister as well as the Home Minister is without any
basis. The application was moved before the Chief Minister
in ‘Jandarshan programme’ wherein it was simply referred to
the Collector without any direction and instruction. The
Home Minister has also not interfered with the quasi judicial
process of Nazul Officer. Simply, the application made to
the Home Minister was sent to the Collector without any
observation and direction and, as such, the allegation of
interference and undue pressure of the office of Chief
Minister as well as Home Minister is baseless and
unsubstantiated.
9. Shri Bhaduri would further submit that the order of the
Nazul Officer is in consonance with the order passed by the
competent Civil Court granting interim injunction in favour
of the respondent No.5. The petitioners had also filed a
civil suit being No.3-A of 69 (Abdul Habib & Others v. The
State of Madhya Pradesh & Others) for declaration and
permanent injunction, which was dismissed for want of
prosecution. Thereafter, an application for restoration was
also dismissed. The petitioners have not taken the said
decision to the superior Courts, but accepted the decision
and, as such, the petitioners cannot question the order
passed by the Nazul Officer at this stage. The same is just
& proper.
10. Shri Rajeev Shrivastava, learned counsel appearing with
Shri Sourabh Dangi, Shri Malay Shrivastava & Shri Sameer
Shrivastava, learned Advocates for the respondent No.5, would
submit that the petitioners filed a civil suit for
declaration of the title on the land, bearing khasra No.736.
By order dated 16-11-1976, the application for amendment was
dismissed by the fourth Civil Judge. Thereagainst, a
Revision, being civil revision No.1205 of 1976 (Abdul Habib &
Others v. Shri Mohanlal Vyas & Another), was preferred by the
first petitioner before the High Court of Madhya Pradesh,
which was dismissed by order dated 24-11-1976. Thereafter,
the civil suit filed by the petitioners was also dismissed
for want of prosecution on 24-2-1982 and an application for
restoration of the same was also dismissed. Thereafter, no
action was taken by the petitioners and, as such, the same
became final. Shri Shrivastava would further submit that the
respondent No.5 has also filed a civil suit for declaration
being civil suit No.38-A/1982 (M/s Raipur Transport Company
Pvt. Ltd. v. Abdul Habib & Others) for declaration and
perpetual injunction, wherein an interim injunction was
granted on 9-7-1982 in favour of the respondent No.5.
11. Shri Shrivastava would next submit that the petitioners,
after an order of interim injunction passed in favour of the
respondent No.5, made illegal encroachment on the petition-
schedule land. Accordingly, an application was made before
the Nazul Officer and the Nazul Officer by order dated 15-9-
2004 having considered the order passed by the Civil Court
and subsequent encroachment by the petitioners directed
removal of the encroachments, which was in accordance with
law. The petitioners have defied the order passed by the
Civil Court without taking any permission of the Civil Court
or without seeking modification or vacation of the interim
injunction by the Civil Court when they were party defendants
to the civil suit, by encroaching the suit land. Thus, there
is no merit in this case and this petition may be dismissed.
12.
In rejoinder, Shri Agrawal, learned senior counsel would
submit that the respondent No.5 was never in physical
possession of the petition-schedule land, therefore, no
proceedings can be initiated under Section 250 of the Code,
1959. The petitioners have not been afforded any
opportunity of hearing while passing the order dated 1-9-2004
(Annexure – P/10).
13. I have heard rival contentions advanced by the learned
counsel appearing for the parties, perused the pleadings and
the documents appended thereto.
14. The petitioners have clubbed reliefs arising from
separate and different causes of action in the petition.
However, at the time of hearing, learned counsel appearing
for the petitioners gave up other reliefs except the relief
No.7.6 to quash the orders dated 31-7-2004 & 15-
9-2004 passed by the Nazul Officer and the order dated 14-6-
2005 passed by the Additional Collector, Raipur, confirming
the order dated 15-9-2004 passed by the Nazaul Officer, as is
evident from the written submissions submitted by the
petitioners. Even otherwise, different cause of action
cannot be clubbed together under the provisions of law.
(See: Indrajit Markam v. State of Chhattisgarh & Others1).
15. The petitioners filed the civil suit No.3-A of 69
(Annexure – R/5 – 28) for declaration and permanent
injunction wherein Shri Mohanlal Vyas, Director, Raipur
Transport Company (respondent No.5 herein) was defendant
No.3. Collector, Raipur, Nazul Officer, Raipur were also the
defendants No.2 & 4, respectively. In the said civil suit,
the petitioners prayed for following reliefs :
“(i) It be declared that the
suit property the
Kabarstan and Idgah shown
in the plaint map by
letters A B C D are wakf
property and the
Defendant Govt. was/is
not entitled to lease out
such wakf property.(ii) The defendants be restrained by permanent injunction from entering or in any way taking possession of the suit property, by executing the above said order in Misc.Cr.C.No.97/64, or otherwise. (iii) That the defendants by order to pay the costs of this suit to the plaintiffs, and"16. Thereafter, an application for amendment in the civil
suit was filed on the basis of notification published in the
gazette dated 1-11-1974 (Annexure –
R/5-18) wherein the khasra No.736 measuring 0.89 acres
situated in Baijnathpara Ward, Raipur, was notified as ‘wakf
property’. The application for the said amendment was
dismissed on 16-11-1976. Thereagainst, a civil revision was
preferred before the High Court of Madhya Pradesh at
Jabalpur, being civil revision No.1205 of 1976, (Annexure –
R/5-19). The said civil revision was dismissed on 4-11-1976
holding as under :
“2. The contention raised on
behalf of the applicants
is that the Wakf Board
has now declared the suit
land as the Wakf Property
with effect from 15-6-1974 and this has been
duly published in M.P.Rajpatra dated 1-11-1974.
Thereafter, the amendment
ought to be allowed.3. In my opinion, the decision of the Wakf Board cannot effect the defendant No.1's rights and the Wakf Board can only acquire rights subject to the decision of the suit."17. Subsequently, the civil suit No.3-A/69 was dismissed on
24-2-1982 (Annexure – R/5-5) for want of prosecution.
Thereagainst, the petitioners preferred an application for
restoration of civil suit being M.J.C. No.7/2001 (Abdul Habib
& Others v. State of M.P. & Others). The said application
was dismissed on 13-10-2003 (Annexure – R/5-6) by the Civil
Court. Admittedly, no appeal/revision was preferred by the
petitioners against the order dated 13-10-2003 passed by the
Civil Judge Class – II, Raipur. Thus, all the claims of the
petitioners including on the basis of notification declaring
a portion of the land as wakf property came to an end, as no
challenge, thereafter, was made to the superior Courts.
18. Thereafter, the respondent No.5, herein, filed a civil
suit No.38-A/82 (Annexure – R/5-29) before the Court of Civil
Judge Class-II, Raipur against the petitioners seeking
declaration and perpetual injunction on the nazul land
comprised in plot No.8/3, block No.16 area 14880 sq.ft. or
thereabout a portion of khasra No.736 situated in civil
station ward near Salem Girls English School, Raipur city,
Raipur. In the said civil suit, the respondent No.5 prayed
for following reliefs :“(a) A declaration that the
Plaintiff is the sole,
absolute and exclusive
owner of the suit
property in its own right
as the permanent lessee
of the State of Madhya
Pradesh.(b) A declaration that the plaintiff is entitled to retain possession of the suit property, both on the basis of its subsisting title as well as in terms of the final orders dated 25-8-64 passed by the sub- Divisional Magistrate under Section 145(4), Cr.P.C. in Misc. Criminal Case No.97 of 1964. (c) A declaration that the Defendants never had nor have how any right, title or interest of any kind in the suit property or in any portion thereof. (d) A perpetual injunction restraining the Defendants, their members, servants, agents or employees, from interfering with or disturbing the possession of the plaintiff over the suit property."19. The Civil Judge, by order dated 9-7-1982 (Annexure – R/5-
7), on perusal of the reports, passed the following order
holding, prima facie, the respondent No.5 as owner and in
possession of the suit land to maintain status
quo :
“vr% vkosnu vk- vk-1
fopkj ckn Lohdkj djds vkxkeh
vkns’k rd vUrfje vLFkk;h
fu”ks/kkKk oknh ds i{k esa ,oa
izfroknhx.k ds fo:) tkjh djds
izpfyr dh tkrh gS fd
izfroknhx.k oknxzLr Hkwfe
[kljk ua- 737 CykWd ua- 16
IykV ua- 8@3 jdck 14880 oxZ
QhV fLFkr flfoy LVs’ku okMZ]
jk;iqj dh ;FkkfLFkfr cuk;s
j[ksaAA bl oknxzLr Hkwfe ij
oknh ds dCts ,oa LokfeRo ij
fdlh izdkj ls gLr{ksi ;k cykr
dCtk ugha djsaxs vkSj u gha os
vius izfrfuf/k;ksa]
deZpkfj;ksa ;k vU; yksxksa ls
gLr{ksi ;k cykr] dCtk oknxzLr
Hkwfe ij djok;saxsAA”
20. Thereafter, it appears that the said civil suit filed by
the respondent No.5 is still pending consideration. No steps
have been taken by the petitioners to get either the same
vacated or modified by the Civil Court. The competent Civil
Court is in seisin of the matter in dispute.
21. According to the learned counsel appearing for the
respondent No.5, encroachment was made by the petitioners on
the teeth of the order passed by the Civil Court on the
petition-schedule land wherein the order of the civil Court
to maintain status quo in respect of the possession was
passed. Thus, the respondent No.5 was forced to make an
application before the Collector on 7-1-2004 (Annexure – R/5-
25) seeking compliance of the order passed by the Civil Judge
in the matter. A copy of the said application was marked to
the Home Minister, State of Chhattisgarh and other officers.
22. The Nazul Officer issued notice to the petitioners vide
Annexure – R/5-26 (i) to the effect that they have made
encroachment in the petition-schedule land and, as such, why
the same may not be removed. A public notice vide Annexure –
R/5-26 (ii) was also issued that on 25-8-2004 the illegal
encroachments on the petition-schedule land shall be removed.
On 25-8-2004 the proceeding was initiated wherein all the
concerned parties were present. On 31-7-2004 (Annexure –
P/9), the Nazul Officer passed the order to inform the
petitioners to remove the encroachment within a period of 15
days, failing which it was proposed to take proper action for
removal.
23. Learned counsel appearing for the petitioners urge that
the order dated 31-7-2004 was passed at the instance of the
Chief Minister as well as Home Minister. I have perused the
letter addressed to the Chief Minister wherein the case was
referred to the Collector without any observation or
direction to consider the case in a particular manner. Thus,
it cannot be held that there was any undue influence or
pressure on the Nazul Officer before passing the order.
Though, direction/letter of the Home Minister was not
produced, however, on perusal of the observation made by the
Nazul Officer, it appears that the Home Minister has directed
to take steps on the application of the respondent No.5 in
accordance with law. Thus, it cannot be held that the order
dated 30-7-2004 is vitiated, on the ground that there was a
simple reference to the letters from the office of the Chief
Minister and Home Minister, but it was not found that any
order was passed on the basis of above-stated letters. On
that date, it was decided to inform the petitioners to remove
the encroachment within 15 days.
24. It appears that no steps have been taken by the
petitioners for removal, thus the final order was passed on
15-9-2004. In the order dated 15-9-2004 there is a clear
mention that as per the order passed by the Civil Judge the
petition-schedule land was in ownership and possession of the
respondent No.5. It was further observed that after the
order was passed by the competent civil Court, the
petitioners had encroached upon the land in dispute. Thus,
the order of removal of the encroachment was passed on 15-9-
2004. Thereagainst, the appeal before the Additional
Collector was also dismissed affirming the order passed by
the Nazul Officer, on 14-6-2005.
25. The submission of the learned senior counsel appearing
for the petitioners that the Nazul Officer could not have
passed the order under Section 129 of the Code, 1959, is
misplaced, as there was no application for demarcation,
whereupon, impugned orders were passed.
26. On perusal of the order dated 31-7-2004, it does not
reflect that the order was passed on any other application,
which might have been moved for demarcation. The order was
passed on the basis of above-stated application, which was
clearly made for removal of the encroachment from the
petition-schedule land. Reference of the petitioners to the
order dated 16-1-2004 wherein there is a discussion about the
demarcation of the petition-schedule land is not conclusive
to the effect that the order was passed in the application,
which was made for demarcation. Thus, the contention of the
learned counsel for the petitioners fails on facts.
27. The contention of the learned counsel appearing for the
petitioners that the respondent No.5 was never in physical
possession of the petition-schedule land and, as such, no
proceedings under Section 250 of the Code, 1959 could be
initiated cannot be decided in this petition, as the dispute
with regard to ownership and possession is pending
consideration in the Court of Civil Judge in civil suit
No.38-A/82 filed by the respondent No.5 and the interim order
dated 9-7-1982 passed by the Civil Judge is still operative
not being modified or vacated subsequently. The report of
Extra Assistant Commission (Annexure – P/5) can also not be
examined at this stage, as the dispute, as aforestated, in
respect of the petition-schedule land, is pending
consideration before the Civil Court. The notification in
respect of the wakf property was sought to be incorporated in
the civil suit No.3-A/69 by application for amendment, which
was rejected and the civil revision preferred, thereagainst,
was also rejected by the High Court of Madhya Pradesh holding
that all the disputes would be subject to final decision of
the civil suit. Thereafter, the civil suit was dismissed for
want of prosecution and even the restoration application was
also dismissed, which had attained finality for want of
challenge in the superior Courts. Thus, there is no merit in
this case.
28. The order passed by the Nazul Officer was in consonance
of the order of status quo passed by the Civil Judge. Thus,
the same cannot be held as vitiated, if the petitioners have
any grievance, the petitioners could have approached the
civil Court for modification/vacation of the interim order
dated 9-7-1982 passed by the competent Civil Court, which is
still in existence, in favour of the respondent No.5.
29. This Court on 24-6-2005 having considered the case of
the petitioners, stayed the dispossession/demolition and
further directed to maintain status quo till the next date of
hearing. Subsequently, after hearing both the parties on 8-9-
2006, the interim order dated 24-6-2005 was modified as under
:
“Shri Kanak Tiwari,
learned Sr. Advocate appearing
for applicant-respondent No.5
would submit that by virtue of
interim order made by the
civil Court, from 1982 till
date he has been in possession
and enjoyment of the suit
schedule property and without
disclosing the fact to the
Court, the other side has
secured the interim order at
the hands of this Court on
24.06.2005 and in view of this
undeniable fact, the interim
order is liable to be vacated.
On the other hand, learned
counsel for the other side was
also heard.
Essentially what this
Court directed vide interim
order dated 24.06.2005 is
directing the parties to
maintain status quo that
obtained as on that date. It
is clarified that if the 5th
respondent-applicant has had
the benefit of the interim
order in his favour as on
24.06.2005, status quo order
passed by this court would not
alter the effect and
consequence of such interim
order. With these observations
this M.(W)P. No.2965 of 2006
is disposed of.”
30. Thus, the interim order passed by the civil Court
continues, as the same was not modified by this Court while
directing to maintain status quo as on 24-6-2005.
31. However, having regard to the facts situation of the
case that the matter is pending consideration before the
Civil Court for about three decades, the Civil Court is
directed to consider and decide the same, in accordance with
law and on its own merits, as early as possible preferably
within a period of six months from the date of receipt of a
copy of this order.
32. It is well settled proposition of law that the writ
Court is not the proper forum for adjudication of the
property disputes or disputes relating to tile. (See :
Mohammed Hanif v. The State of Assam2, M/s. Hindustan Steel
Limited, Rourkela v. Smt., Kalyani Banerjee and Others3 and
Shalini Shyam Shetty and Another v. Rajendra Shankar Patil4).
33. Resultantly, the writ petition, being bereft of merit,
is liable to be and is hereby dismissed.
34. There shall be no order asto costs.
J u d g e
