Bombay High Court
Yusuf Ajij Shaikh And Others vs Special Land Acquisition Officer And ... on 7 July, 1994
Equivalent citations: AIR1994BOM327, 1994(4)BOMCR175, (1995)97BOMLR823, 1995(1)MHLJ483, AIR 1994 BOMBAY 327, 1995 BOMCJ 1 394, (1995) 1 MAH LJ 483, (1994) 3 CIVLJ 824, (1995) 1 CURCC 297, (1995) 2 RENTLR 472, (1995) 1 MAHLR 763, (1994) 4 BOM CR 175
JUDGMENT
1. The Appellants herein filed the suit against the Respondents for a declaration that the suit property is an ancient monument and structure of Archadogical importance and for permanent injunction restraining them from acquiring the land. The suit came to be dismissed and the said decree confirmed in appeal. It is under challenge in this Appeal.
2. The property bearing C.T.S. No. 327 from Raviwar Peth, Bohari Ali, Pune is situated in the midst of the road passing east-west and belongs to a religious trust known as Subhansha Dargah and Masjid Trust -- a registered Public Trust. The property is known as Subshansha bungalow and situated in a congested area.
3. Pune Municipal Corporation took into consideration bottlenecks to the traffic due to the said structure and passed a resolution for acquiring the same for road widening. The proposal was made to the government and at that time instead of acquiring the whole, part of the land came to be acquired admeasuring about 274 sq. ft. from the north side. Award came to be passed in that respect on 29-6- 1966. However, the Corporation was asked to make study about the traffic and submit fresh proposal if necessary. The Municipal Corporation found partial acquisition totally insufficient to clear the difficulties of traffic bottlenecks. It was found that there was fast expansion and, therefore, fresh proposal was made of acquisition. Notification under Section 4 of the Land Acquisition Act was issued on 5-2-1970 for acquisition of the remaining property. Notices came to be issued to the trustees of the Trust and the objections came to be heard by the Land Acquisition Officer under Section 5A of the Land Acquisition Act. The objections were turned down and Section 6 Notification came to be issued on 27-6-1972 and an award came to be passed on 3-9-1974.
4. The Appellants have challenged the second Award in the suit filed by them. The Appellant No. 1 is a trustee and Appellants Nos. 2 to 4 are members of the Muslim community. The acquisition was challenged mainly on the following grounds :
(i) There can be no second acquisition;
(ii) it was malicious and therefore illegal;
(iii) the property is more than 200 years old and covered by the provisions of the Ancient Monuments and Archaeolegical Sites and Remains Act, 1958 (hereafter referred to as the Ancient Monument Act). As such it is an ancient monument and structure of Archaeological importance and, therefore, the same cannot be acquired.
5. In the written statement filed on behalf of the Respondents, allegations regarding mala fides came to be denied. It was contended that the Corporation originally required for road widening entire land admeasuring 764 sq. ft. of area. It was necessary for clearing the bottleneck in the traffic. However, the Government acquired 274 sq. ft. and deleted portion of Dargah and Mosque and directed the Coporation to study the effects of traffic after widening the road from the north side which land was acquired. Liberty to submit fresh proposal was given. The Corporation found partial acquisition totally insufficient and hence fresh proposal was made. Enquiry was conducted by the Land Acquisition Officer under Section 5A and the various contentions raised by the trustees were negatived. It was denied that the structure is covered by the Ancient Monument Act.
6. All the three contentions raised on behalf of the Appellants came to be negatived by both the Court below. The lower appellate Court further held that the suit was filed by the Appellants in their individual capacity and not in the representative capacity. It was not on behalf of any particular community and the application filed to convert the suit as representative was rightly rejected by the trial Court.
7. The learned Advocate appearing for the Appellants raised four points in support of his appeal -
(1) He first submitted that in view of the new enactment by the Central Legislature i.e. The Places of Worship (Special Provisions) Act, 1991, there can be no acquisition as it would amount to conversion of the place of worship, (2) The second acquisition is mala fide as part of the land was already acquired. This part of the land can be saved and road can be widened by acquiring some other land.
(3) In view of para 101 of the Manual of Land Acquisition for the State of Maharashtra, this acquisition can be dropped.
(4) The Court below has erred in deciding whether the suit was of a representative character or not and has failed to interpret the provisions of Order I, Rule 8 of the C.P.C.
8. The new question now raised is whether this acquisition can be dropped in view of the enactment i.e. The Places of Worship (Special Provisions) Act, 1991 (hereafter referred to as the Places of Worship Act). The learned Advocate for the Appellants drew my attention to the Preamble of the said Act which says that this is an Act to prohibit conversion of any place of worship and to provide for the maintenance of the religious character of any place of worship as it existed on the 15th day of August 1947. This is also to be found in Section 4(1). Section 2(b) defines 'conversion' which is as follows :-
"2(b) "conversion" with its grammatical variations, includes alteration of change of whatever naturel";
Section 3 is a charging section. It says that "No person shall convert any place of worship of any religious denomination or any Section thereof into a place of worship of a different section of the same religious denomination or of a different religious denomination or any section thereof. The learned Advocate for Respondents submits that this enactment has no application as far as the acquisition of land under the Land Acquisition Act is concerned. The ban is on persons to convert, alter or change from one section etc. to another. This has been done with a view that persons of one community or section do not trespass and usurp the land or religious place of some other religious community or section and convert it into their place of worship. This has been done with a view to maintain communal harmony in the country. He submits that this is also clear from Section 6 which provides for punishment for contravention of Section 3, Section 6(1) provides for punishment to person who contravenes Section 3 with imprisonment for a term which may extend to three years and shall also be liable to pay fine. Section 6(2) and Section 6(3) provide for attempt and abetment in that respect. The submission made on behalf of respondents deserves to be accepted. In this case land is sought to be acquired under the provisions of the Land Acquisition Act. No provision of the Places of Worship Act bans such acquisition under Land Acquisition Act expressly or impliedly. The provisions of the Land Acquisition Act are not abrogated. It is very clear that this Act has been enacted for the limited purpose to prohibit and punish one section or community who illegally takes over the land of religious worship of another community or section and changes its character. It is not possible to accept the submission that acquisition of land under the Land Acquisition Act loses its character and therefore prohibited. Under this Act, conversion contemplated by Section 3 is by persons of the place of worship of one community or Section to religious place of worship of some other community or section. It is not mere conversion as defined. This legislative intent is clearly discernible and done with a view to see that communal harmony is not disturbed by such acts of one community or section or denomination. The injunction under Section 4(1) is for the people of all communities to see that the religious character of a place of worship existing on the 15th day of August, 1947 is maintained and continued and there is no conversion. This cannot cover in its sweep the acquisition of land under the Land Acquisition Act. It is not merely because there is a loss of Dargah or the Mosque this would amount to conversion in view of Section 3. This is also clear from Section 6 which prescribes punishment to those persons who indulge in such conversion. Hence I reject this contention.
9. The learned Advocate for the Appellants submitted that the second acquisition in respect of this property is a mala fide one and, therefore, illegal. It is true that earlier part of the land came to be acquired for the purpose of road widening and award in that respect was also passed in 1966. However, it is to be noted that the Municipal Corporation had originally sent the proposal to the Government to acquire the entire land. But part of the land came to be acquired and award was passed. At that time the Government made clear to the Municipal Corporation that the Corporation should study the traffic and liberty was granted to make a fresh proposal. The Municipal Corporation considered the traffic problem and the bottleneck created. Admittedly, this is situated in a congested business area having heavy traffic. The Corporation, therefore, made a fresh proposal to acquire the remaining land so as to cease the growing traffic problem and the Government accepted the same. Therefore it cannot be said that there was any malice or the acquisition was mala fide. Further, enquiry under Section 5A was held and and similar objections raised came to be negatived by the Land Acquisition Officer. It is not disputed that there is no traffic problem. It is also not possible to accept that some other portion may be acquired and this Mosque or Dargah be saved or retained. This Dargah and Mosque are just in the middle of the road and there are some shops in it. It has been pointed out by the Respondents that it is not possible to solve the traffic problem in view of the situation of the structure. This contention of Respondents has been accepted by both the Courts below. The learned Advocate for the Appellants submitted that this Dargah structure can be retained as a traffic island. In view of this submission, I made an attempt to see that only Dargah portion is saved and retained as a traffic island. A suggestion was also made to the Municipal Corporation to that effect and the matter was adjourned on last occasion. But it was found by appellants that part of the structure is required to be demolished even for retaining the Dargah part. Later on, the learned Advocate appearing for the Appellants submitted that it is not acceptable to the appellants as it would require demolition of a part of the structure. Hence, this suggestion fell through. Therefore, I concur with the Courts below that there were no mala fides in this acquisition.
10, The learned Advocate appearing for the Appellants relied upon Para 101 of the Manual of Land Acquisition for State of Maharashtra. It provides that when the Acquisition Officer cannot save Government from a possible conflict with religious sentiment by modifying the original proposition, his next endeavour will be to make a tactful negotiation with the parties." It further says as follows:
"The Act enables him to acquire "land", but not the sentiment of a community. When, therefore, the two are inseparable, he will naturally seek to appease communal feeling by which concession in the matter of market value as is represented ordinarily by (he adoption of the principle of reinstatement rather than capitalisation of income."
It also makes a further reference that special care is required in cases of congested areas and street improvements. First, this part does not prohibit acquisition of land but only shows a desire to safeguard the religious sentiments of a community. It provides that some generous compensation should be paid in such cases. It does not provide that public interest should be lost sight of and there should be no acquisition for protecting the religious sentiments of a community. Secondly, these are only guidelines given to the Acquisition Officer having no legal force. Obviously, they are to be taken into consideration by the Acquisition Officer when the enquiry under Section 5A is held and it is not for the Court to interfere.
11. The last contention raised is that the trial Court ought to have granted the permission to file the suit in the representative capacity. The application came to be filed on behalf of appellants and two other persons who wanted to join in the suit and to treat it in representative capacity. The same came to be rejected by the learned Civil Judge. Senior Division, Pune by his order dated 4th January, 1984 on the ground that the application was made at a late Stage when the suit was fixed for hearing.
12. The learned Advocate for the Appellants sought to rely upon various Judgments. But no judgment is shown laying down that even if permission is not granted under Order 1, Rule 8, the suit is to be treated as representative. The learned Advocate for appellants relied mainly on -
1) Kundan Singh v. Gurunam Singh.
2) Narayani Kamalakshi v. Cunchiyan Bahulayan.
3) (FB) Kodia Goundar v. Velandi Goundar.
All these judgments deal with the position when permission under Order I, Rule 8(1) is granted by the Court. It has been accepted that the provision of Order I, Rule 8(2) lays down that where such permission is granted to file a suit in a representative capacity then it is mandatory to give notice of the institution of suit to all persons interested either by personal service or by advertisement as directed by the Court. They do not deal with the position where such a permission is not granted. Order 1, Rule 8(1) is an enabling provision. If permission is granted then the effect thereof is mentioned in O. I, R. 8(6) which provides that a decree passed in a representative suit under this Rule shall be binding on all persons on whose behalf or at whose benefit the suit is instituted or de fended. In other words, the effect of not granting such a permission would be that the.
decree would be binding only on the applicants who are parties to the suit. The learned advocate for the appellants drew my attention to certain averments which are made in the plaint to indicate that it was a representative suit. But merely because some averments are made it cannot become a representative suit and can acquire such a character. The per mission is required to be granted by the Court under O.I, R. 8(1). Secondly, the said order was not challenged further and no prejudice is shown to have caused to the Appellants by refusal of such permission. No application was made in the Court below or in this Court to grant such permission. Hence, in my opinion, there is no substance whatsoever in this point. It is not possible to set aside the decree on this ground.
13. Hence, the following order:--
(i) The appeal is dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs.
(ii) Interim stay granted by this Court is extended for six weeks.
(iii) Certified copy expedited.
14. Order accordingly.