Bombay High Court
Baba Haider Ali Shah Dargah, Thr. Its ... vs State Of Maharashtra, Thr. Its ... on 4 October, 2018
Author: M.G.Giratkar
Bench: B.P. Dharmadhikari, M.G.Giratkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.6411 OF 2018
Baba Haider Ali Shah Dargah and anr. -Vs.- State of Maharashtra and ors.
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Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders.
or directions and Registrar's orders.
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Mr. S.P. Bhandarkar, counsel for the petitioners.
Mr. Puranik, counsel for respondent nos.2 to 4.
CORAM : B.P. DHARMADHIKARI &
M.G.GIRATKAR, JJ.
DATE : 04.10.2018.
1. The matter is under consideration of this Court since 1.10.2018.
2. With the assistance of respective counsel today, we are in position to pass this order. Respective counsel namely, Mr. Bhandarkar for petitioners and Shri.Puranik, for respondent nos.2 to 4 have visited the spot.
3. Earlier there was some controversy about the ownership of land forming part of or supporting Dargah. Actual area of that piece of land is 54 sq.ft. The Award passed on 30.9.1966 by Land Acquisition Officer, NIT, Nagpur mentions that this 54 sq. ft. in freehold rights covered by Dargah and its structure were excluded from Kavita ::: Uploaded on - 05/10/2018 ::: Downloaded on - 06/10/2018 01:39:21 ::: 4-wp-6411-18.odt 2/5 evaluation, but then a nominal compensation of Re.1/- was awarded towards it. This arrangement therefore, shows that 54 sq. ft. of land holding Dargah has also been acquired. Rightly the parties then felt that it could not have been valued in terms of money and hence formula applied for working out compensation for rest of property has not been used for this 54 sq. ft. portion. On the contrary, parties rightly agreed to have a honorary compensation of Re.1/-.
4. The personal visit shows that part of this 54 sq.ft. portion goes under the actual constructed road i.e. its tarred portion. Beyond the tarred portion there is path way/footpath. 54 sq. ft. therefore, falls on part of land of public road and a footpath.
5. It is not in dispute that when squad of respondent nos.2 to 4 visited the spot on 29 th and 30th September 2018 both petitioners before us have given an undertaking to shift to a kabrastan within 48 hours. It is apparent that in this view of the matter shifting of Dargah to an alternate site is imminent .
6. Learned Advocate Mr.Bhandarkar, submits that petitioner no.l through its president has without taking him into confidence approached Waqf Tribunal at Aurangabad and that Tribunal has on 1.10.2018 passed orders of temporary injunction restraining the corporation from Kavita ::: Uploaded on - 05/10/2018 ::: Downloaded on - 06/10/2018 01:39:21 ::: 4-wp-6411-18.odt 3/5 demolishing the structure of Dargah. Shri.Bhandarkar, therefore, requested Court to permit him to withdraw vakalatnama for petitioner no.l.
7. Petition has been filed by petitioner no.l through its secretary before us. The respondent nos.2 to 4 have taken steps in furtherance of directions of Hon'ble Apex Court and the consequential government resolution dated 5.5.2011.
8. All this has been looked into in judgment delivered on 19.9.2018 in Writ Petition No.6177 of 2006 and other connected matters. In that judgment this Court has emphatically ordered that the structures standing on foot path, public streets, roads are not covered by its directions and all such structures need to be demolished by Municipal Corporation and Nagpur Improvement Trust within a period of one week. It is reported that on 28.8.2018 this direction is again reiterated while passing orders in Writ Petition No. 6177 of 2006 only.
9. Learned advocate Mr. Puranik during arguments has also submitted that an identical Dargah standing on other side of the road has been removed without any objection by anybody.
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10. In present facts as the petitioner no.2 has already shown readiness and willingness and the land vests with Nagpur Municipal Corporation, we find that interest of justice can be met with by permitting petitioner no.2 to shift to alternate site without fail within 7 days. We direct respondent nos.1 to 5 to provide necessary assistance for this purpose. The actual transport of holy remains to alternate site shall be carried out by petitioner no.2 and devotees. Corporation and State Government shall only provide assistance in digging operation or removing of soil.
11. The alternate site is already communicated by petitioner no.2 in the undertaking furnished to Corporation. We in this situation, direct that actual operation shall commence within 48 hours from today and shall be completed within next seven days. After the holy remains are shifted, it will be open to Corporation to construct the road so that it has uniform width on its entire stretch.
12. If the operation does not commence within 48 hours, it shall be open to Corporation to remove the super structure and without touching holy remains to have a road upon 54 sq. ft. of portion as per its requirement.
13. Insofar as petitioner no.1 and its conduct is concerned, learned advocate Mr.Puranik, has submitted that the Waqf Tribunal has even in past at least on two Kavita ::: Uploaded on - 05/10/2018 ::: Downloaded on - 06/10/2018 01:39:21 ::: 4-wp-6411-18.odt 5/5 occasions violated orders of this Court and orders of Hon'ble Apex Court. The Tribunal is headed by a District Judge, who acts as Chairman thereof. Said Tribunal is not party before us.
14. In this situation, we vacate the interim order granted by Waqf Tribunal on 1.10.2018 to petitioner no.1.
15. However, as petitioner no.l has given identical undertaking, we make similar arrangement applicable to it. It is open to petitioner no.1 to shift the holy remains accordingly by commencing the operation within 48 hours and to complete it within next seven days. If such operation is undertaken by petitioner no.1, the directions issued to respondent nos.1 to 5 supra shall also hold good in their case.
16. With these directions, we list Writ Petition for further consideration on 15th October 2018.
17. Steno copy be supplied to the parties.
JUDGE JUDGE
Kavita
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