Allahabad High Court
U.P. Sunni Central Waqf Board And ... vs Raja Khan And Another on 5 August, 2010
Author: F.I. Rebello
Bench: Ferdino I. Rebello, A.P. Sahi
A.F.R.
Chief Justice's Court
Special Appeal No. 973 of 2010
*****
U.P. Sunni Central Waqf Board & Anr.
Vs.
Raja Khan & Ors.
Appearance :
For the Appellants : Mr. W.H. Khan, Adv.
For the Respondents : Mr. M.A. Qadeer, Adv.
Hon'ble Ferdino I. Rebello, C.J.
Hon'ble A.P. Sahi, J.
(Judgement by : Justice Ferdino I. Rebello, C.J.) This is an appeal against the order passed by the learned Single Judge dated 11.06.2010 and further directions issued by order dated 18.06.2010. We may gainfully reproduce both the orders. The order dated 11.06.2010 reads as under:-
" Issue notice to respondent Nos. 2, 3 and 4. The said respondents are directed to file counter affidavit within 6 weeks. Rejoinder affidavit, if any, may be filed within two weeks thereafter. List thereafter.
The grievance of the petitioner is that for the last several years the petitioner is allotted land for installing Circus, Jhoola, Merry go round swing for amusement area for the children and visitors of Mela in the premises of Dargah Sharif during the annual Urs in the month of Jeth (May and June).
Accordingly the respondent Nos. 2, 3 and 4 are 2 directed to allot land in the Mela at Waqf No. 19, Dargah Sharif, Bahraich over Plot Nos. 1760 to 1770 and 1826 to 1834, details of which have been given in the writ petition, to the petitioner for the purposes of running Circus, Jhoola, Merry go round swing etc. if the petitioner pays required rent lease, the possession of the allocated land shall be handed over to the petitioner within 3 days."
Order dated 18.06.2010 reads as under:-
"Heard learned counsel for the petitioner and the learned standing counsel.
Learned counsel for the petitioner has raised the grievance that despite earlier order of this Court dated 11- 6-2010, the petitioner has not been allotted land in the Mela area. The very purpose of filing the writ petition would be frustrated if the petitioner is not allotted the land for running circus/Jhula in the Mela area.
The District Magistrate and the Superintendent of Police, Bahraich are directed to pass appropriate order in compliance of the order of this court dated 11-6-2010 and allot appropriate plot to the petitioner and file an affidavit of compliance.
Put up this case on 16-7-2010 before appropriate bench for hearing. The concerned officers or any other senior officer authorities by them shall file affidavit of compliance by 28-6-2010."
A learned Division Bench, in the summer vacation, by order dated 21.06.2010 was pleased to stay the operation of order dated 11.06.2010 as also the consequential order dated 18.06.2010.
We are setting forth a brief narration of facts to demonstrate how the 3 judicial process was abused and subverted to get relief in a case, which was totally devoid of merit and jurisdiction.
One Raja Khan, respondent no.1 herein, original petitioner, (hereinafter referred to as the 'respondent no.1') had filed a petition, being Writ Petition No. 4720 (M/B) of 2010 (Raja Khan Vs. District Magistrate, Bahraich & Ors.) before the Lucknow Bench of this Court, challenging the decision of the Committee of Management of Waqf No. 19, popularly known as Dargah Hazrat Sayed Salar Masood Ghazi RA Dargah Sharif at Bahraich, refusing to allot the land in his favour, in the year 2009. The petition was dismissed by order dated 19.05.2010 with liberty to approach the District Magistrate by making a representation. The respondent no.1 made a representation, which was decided by order dated 21.05.2010 with a direction to the Committee of Management to reconsider the application of respondent no.1 (Raja Khan) for allotment of land within three days. The respondent no.1 made an application before the Committee of Management for grant of lease. Simultaneously, he filed a writ petition, being Writ Petition No. 5245 (M/B) of 2010 before the Lucknow Bench of this Court challenging the order of the District Magistrate. The writ petition was dismissed as not maintainable by the learned Bench on 26.05.2010 holding that the respondent no.1 had remedy before the appropriate forum/Court.
The respondent no.1, then, took a strange route and filed Civil Suit No. 54/70/10 (Raja Khan Vs. Committee of Management & Ors.) before the Civil Judge (Senior Division), Hamirpur along with an application under Order XXXIX Rules 1 and 2 of C.P.C. for temporary injunction, though the 4 matter pertained to lease/licence of land. On the suit being presented, the Munsarim made a report that the suit was not cognizable by Civil Judge (Senior Division), Hamirpur for want of territorial jurisdiction. The respondent no.1 took time to file reply/objection against the said report.
The respondent no.1, however, against that report (order), filed a writ petition, in which the impugned orders came to be passed, giving rise to the present appeal.
When the matter came up before us, time was sought by the respondent no.1 and thereafter it was informed that an application has been moved to withdraw the petition itself. By order dated 13.07.2010, we have noted the same and called for the records of the writ petition, being Writ Petition No. 34595 of 2010, and the application filed by the respondent no.1 dated 09.07.2010. When the matter came up next for hearing, learned counsel also informed that the suit has been withdrawn. As we have noted earlier, this case reflects the total abuse of the process of the Court by respondent no.1 - petitioner in securing an order, which he was not entitled to. The glaring facts that emerge, are -
(1) the suit, under no circumstances, could have been filed at Hamirpur, as no part of cause of action had arisen therein and the cause of action was at Bahraich, as the lease was sought in respect of the property at Bahraich; (2) the respondent no.1, knowing the position, had filed writ petitions before the Lucknow Bench of this Court, wherein various orders were passed;
(3) Bahraich district falls within the territorial jurisdiction of the Lucknow Bench, whereas the Hamirpur district falls within the territorial jurisdiction 5 of this Court. Respondent no.1 filed the Suit at Hamirpur, and even though only a report was made by the Munsarim that the Civil Judge (Senior Division) had no jurisdiction, yet against the said report (order), he preferred the writ petition, when the issue of territorial jurisdiction was yet to be decided by the Civil Judge. (4) The petition was filed before this Court on 08.06.2010, though the application for decision on the issue of territorial jurisdiction was fixed before the Civil Judge (Senior Division), Hamirpur on 11.06.2010.
The synopsis to the petition shows that Jeth Mela was to start on 03.06.2010. The cause shown in the suit was that all the correspondence was served upon respondent no.1 at his residence at Hamirpur where he caries out his business. According to respondent no.1, the cause, therefore, for moving this Court was not against any order but in respect of an application, which was to be heard on 11.06.2010 at Hamirpur which falls within the territorial jurisdiction of this Court. The suit itself was filed, it appears, in the beginning of June, 2010. On 11.06.2010, the learned Single Judge directed the notices to be issued to respondent nos. 2, 3 and 4 to file counter affidavit and without hearing the respondents, granted relief by way of a mandatory direction against the said respondents directing them to allot the land to respondent no.1 within three days, if he was willing to pay the required lease rent. Thereafter, the second order came to be passed on 18.06.2010. To our mind, respondent no.1 (original petitioner), has abused the process of the Court and got an order by invoking the jurisdiction of this Court, where none existed, and that too at an ex parte stage with no notice to 6 the respondents, in a matter purely of a private lease in respect of which really no writ could have been issued against the Board, which is not a State within the meaning of Article 12 of the Constitution.
The rule of law and constitutional values will only have a meaning if the jurisdiction of the Court is not usurped and abused. The faith of the common man in the system is, when he believes on the impartiality and integrity of the men, who run the system. Any cause, which reflects on the integrity of the system, has to be avoided. If the jurisdiction of the Court is misused and abused, this Court cannot keep its eyes closed and allow the matter to rest. As we have noted above, apart from subversion of the judicial process and abuse, this case defies all norms, propriety-wise or otherwise.
This would, therefore, be a fit case, where a cost should be awarded against respondent no.1, which is quantified as Rs. 1,00,000/-. Out of the said amount, Rs. 50,000/- shall be paid to the appellants, and Rs. 50,000/- shall be paid to the Allahabad High Court Mediation and Conciliation Centre, at Allahabad. The said amount shall be paid within four weeks from today.
Accordingly, the appeal is allowed, and the impugned orders dated 11.06.2010 and 18.06.2010 passed in Writ Petition No. 34595 of 2010 are set aside.
The application for withdrawal be placed before the learned Single Judge.
05.08.2010 AHA (A.P. Sahi, J.) (Ferdino I. Rebello, C.J.) 7 Hon'ble F.I. Rebello, C.J.
Hon'ble A.P. Sahi, J.
Allowed.
For orders, see order of date passed on separate sheets.
05.08.2010 AHA (Ferdino I. Rebello, C.J.) (A.P. Sahi, J.)