Gujarat High Court
Pandya Manishanker Dhanjibhai vs State Of Gujarat on 8 March, 2021
Author: Vineet Kothari
Bench: Vineet Kothari, Gita Gopi
C/LPA/1055/2016 CAV JUDGMENT DT 8.3.21
PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar
In Re: Kabristan (Graveyard) Bhavnagar Dispute
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
1. R/LETTERS PATENT APPEAL NO. 1055 of 2016
In
R/SPECIAL CIVIL APPLICATION NO. 12594 of 2002
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2016
In
R/LETTERS PATENT APPEAL NO. 1055 of 2016
With
2. R/LETTERS PATENT APPEAL NO. 1516 of 2017
In
SPECIAL CIVIL APPLICATION NO. 12594 of 2002
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE VINEET KOTHARI
and
HONOURABLE MS. JUSTICE GITA GOPI
==================================================================
1 Whether Reporters of Local Papers may be allowed to Yes
see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the Yes
judgment ?
4 Whether this case involves a substantial question of law Yes
as to the interpretation of the Constitution of India or
any order made thereunder ?
==================================================================
R/LETTERS PATENT APPEAL NO. 1055 of 2016
1. PANDYA MANISHANKER DHANJIBHAI
2. KUMARBHAI JAISHUKHBHAI MEHTA
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C/LPA/1055/2016 CAV JUDGMENT DT 8.3.21
PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar
In Re: Kabristan (Graveyard) Bhavnagar Dispute
3. DAWOOD ALI RAJAB ALI
4. MAHESHKUMAR RATANLAL JODHWANI
5. RATANLAL NAVMAL JODHWANI
6. ABDUL KHAYYUM ISMAILBHAI
7. USMAN ABDYUL KARIM
8. DIN MOHAMED MOHAMED ISAAK PATHAN
9. REHMAN PIRABHAI SOLANKI
10. MOHAMED KHALID KASAMBHAI
11. SHAIK MOHAMED RAFEEQ MOHAMED HUSSAINBHAI
12. IQBALBHAI ISMAILBHAI LOHIA
13. INTAKHAB MUMTAZKHAN
14. FAROOQBHAI HUSSAINBHAI SAYED
15. SALIMBHAI ISABHAI DARAYA
16. SALIMBHAI ISABHAI DARAYA
17. YUNUSBHAI BACHUBHAI SHAIKH
18. YUSUFBHAI ABDUL REHMAN
19. SHAIKH USMAN DAWOOD
20. IBOOBHAI ISMAILBHAI MOMIN
21. RAJAK BAIG ANWAR BAIG
22. ABDUL MAJEED BABUBHAI SHAIKH
23. YUSUFBHAI SULTHANBHAI SHAIKH
24. GAFARBHAI AHMEDBHAI MEHTAR
25. FATANI ISMAIL IBRAHIM
26. SIRAJ AHMED DOST MOHAMED ANSARI
27. RAFEEQ YUSUFBHAI GOGHARI
28. YUNUSBHAI YUSUFBHAI GOGHARI
29. RAHIMBHAI BACHUBHAI
30. ABDUL RAZAK IBRAHIMBHAI
31. RAMESHCHANDRA JAYANTILAL MEHTA
32. ABDUL RAJAK IBRAHIMBHAI
33. ANILKUMAR POPATBHAI GAUTAMI
34. ABDUL WAHAB SATTARBHAI DASARAI
35. ISMAILBHAI USMANBHAI GOGHARI
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C/LPA/1055/2016 CAV JUDGMENT DT 8.3.21
PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar
In Re: Kabristan (Graveyard) Bhavnagar Dispute
36. RAFEEQBHAI USMANBHAI GOGHARI
37. FAROOQ MOHAMEDBHAI MIRANI
38. ABDUL KADAR HAJI MOHAMED
39. PRASHANT RAMESHBHAI MEHTA
40. SABIRBHAI HASSANBHAI SHAIKH
41. HARESH MANSUKHLAL RAJYAGURU
42. BHARATKUMAR V KAPASI
Versus
1. STATE OF GUJARAT
2. COLLECTOR
3. CITY MAMLATDAR
4. CHANCHIVAD MEMON JAMAT PUBLIC TRUST,REGI.NO.B/15
5. AMDUL MAJID KASAMBHAI MEMON
6. ANWAR HAJI HUSENBHAI DORDIWALA
7. FARUKBHAI ALARAKHABHAI ADHIA
8. UMMARBHAI ABUBAKARBHAI TINWALA
9. IKBALBHAI AARAB
10. AHMEDBHAI YUSUFBHAI LOTA
11. SUNNI MUSLIM SAMAJ,BHAVNAGAR THRO ITS MEMBER
============================================================
Appearance:
LETTERS PATENT APPEAL No. 1055 OF 2016 - Pandya Manishanker
Dhanjibhai & 41 Others v. State of Gujarat & 10 Others
MR MIHIR THAKORE, Senior Counsel with MR SANDIP SINGHI with MR
SHANIK BHATT with MS ANVI MAJMUDAR for M/s SINGHI AND CO for the
Appellant Nos.1 to 42
MR MEET THAKKAR, Assistant Government Pleader for Respondent No.1
MR M.T.M. HAKIM for MR SAQUIB S ANSARI for Respondent Nos.5 to 10
MR A.S. ASTHAVADI for Respondent No.11
NOTICE SERVED for Respondent Nos.1 to 4
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C/LPA/1055/2016 CAV JUDGMENT DT 8.3.21
PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar
In Re: Kabristan (Graveyard) Bhavnagar Dispute
LETTERS PATENT APPEAL No. 1516 OF 2017 - Sunni Muslim Samaj,
Bhavnagar v. Pandya Manishanker Dhanjibhai & 51 Others
MR A.S. ASTHAVADI for the Appellants
MR MEET THAKKAR, Assistant Government Pleader for Respondent Nos.43,
45
MR MIHIR THAKORE, Senior Counsel with MR SANDIP SINGHI with MR
SHANIK BHATT with MS ANVI MAJMUDAR for M/s SINGHI AND CO for
Respondent Nos.1 to 3, 4 to 41 & 42
MR M.T.M. HAKIM for MR SAQUIB S ANSARI for Respondent Nos.47, 48 to
52
============================================================
CORAM: HONOURABLE DR. JUSTICE VINEET KOTHARI
and
HONOURABLE MS. JUSTICE GITA GOPI
Date : 8th March 2021
CAV JUDGMENT
(PER : HONOURABLE DR. JUSTICE VINEET KOTHARI)
1. Present Intra Court Appeal has been filed by Pandya Manishanker Dhanjibhai and 41 others claiming to be the Tenants of Respondent No.4 Ghanchivad Memon Jamat (later on registered as a Public Trust under the Bombay Public Trusts Act), having its Registration No.B/15, Bhavnagar in the shops located at 'Old Kabristan' in Bhavnagar, situated at Survey Nos.7617 to 7622 and 7630 in the City Survey Ward No.3 at Navapura, Bhavnagar. The Appellants - Petitioners are aggrieved by the dismissal of their Special Civil Application No.12594 of 2002 by Page 4 of 46 Downloaded on : Thu Jan 13 07:01:10 IST 2022 C/LPA/1055/2016 CAV JUDGMENT DT 8.3.21 PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar In Re: Kabristan (Graveyard) Bhavnagar Dispute the learned Single Judge of this Court, vide order dated 23.9.2016 mainly on the ground of their locus standi to maintain such writ petition, suppression of material facts from the Court and pendency of Civil Suits filed by them which were pending trial in the Subordinate Courts.
2. It may be stated, at the outset, here that Respondent No.4, the Trust has already filed a Regular Civil Suit No.13 of 1998 in the Court of Civil Judge (Senior Division), Bhavnagar - Ghanchivad Memon Jamat vs. State of Gujarat and others for Declaration and Injunction for almost the same relief, for which the present litigation in writ jurisdiction of this Court has been initiated by the Tenants of the shops constructed presumably by the Trust itself and in the said suit, the Trust has claimed the right of declaration over the said property for the aforesaid Survey numbers and also injunction against the State Authorities not to dispossess the Plaintiff from the said land in question. It was brought to our notice that the said suit was returned under Order 7 Rule 10 of the Civil Procedure Code, 1908, vide order dated 18.12.2018 passed by the 5th Additional Senior Civil Judge, Bhavnagar for presenting the said suit before the Waqf Board / Tribunal, Gandhinagar, Gujarat in view of the amendment of Page 5 of 46 Downloaded on : Thu Jan 13 07:01:10 IST 2022 C/LPA/1055/2016 CAV JUDGMENT DT 8.3.21 PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar In Re: Kabristan (Graveyard) Bhavnagar Dispute Section 83 of the Waqf Act, 1995 in 2013, whereby Section 83 of the Waqf Act, 1995 providing for Constitution of Waqf Tribunal under the Waqf Act, 1995 was amended to include also the 'dispute with regard to eviction of a tenant or determination of rights and obligations of the lessor and the lessee of waqf property' besides the earlier general powers to determine any dispute, question or other matter relating to a waqf or waqf property under the said Act. It was further stated before us by learned Senior Counsel Mr.Mihir Thakore that a Review Petition has been filed before the said Trial Court of 5 th Additional Senior Civil Judge, Bhavnagar, seeking a review / modification of the said order dated 18.12.2018 with a prayer to the said Court to itself transfer the pending trial of the said Suit No.13 of 1998 to the Waqf Tribunal.
3. Though, during the course of arguments on behalf of the Appellants - Tenants represented by Mr. Mihir Thakore, the learned Senior Counsel, we expressed a doubt and a question to the learned counsel for the Appellants that if the question of Ownership or Title of the Trust itself was the burden of this Writ Petitioners and Tenants were only a front used by the Trust to run this litigation in writ jurisdiction parallel to civil suit proceedings Page 6 of 46 Downloaded on : Thu Jan 13 07:01:10 IST 2022 C/LPA/1055/2016 CAV JUDGMENT DT 8.3.21 PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar In Re: Kabristan (Graveyard) Bhavnagar Dispute and only the Trust was sought to be divested of its such right by the order of the District Collector, Bhavnagar dated 4.2.1990, the Tenants may not have locus standi to challenge the same as they cannot claim to be the owners of the land in question which is said to have been allotted in favour of the Trust by the erstwhile State of Bhavnagar way back in 1895 as Kabristan (Graveyard) and since the said relief could be claimed and has been claimed by the Trust itself in the Civil Suit No.13 of 1998, as aforesaid, therefore, whether the Tenants of the Trust should be allowed at all to invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India or not.
4. The said query of the Court on the preliminary ground of maintainability was sought to be answered by the learned Senior Counsel Mr. Mihir Thakore with the submission that the Trust was served with Notice dated 24.12.2002 by the City Mamlatdar, Bhavnagar to hand over the possession of the land in question to the said Authority, failing which they will remove the unauthorised construction, hindrance, etc. and therefore, since the Tenants were occupying the shops leased out to them by the said Trust, they were likely to be affected by this and therefore, they got the cause of action to invoke the writ jurisdiction of this Page 7 of 46 Downloaded on : Thu Jan 13 07:01:10 IST 2022 C/LPA/1055/2016 CAV JUDGMENT DT 8.3.21 PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar In Re: Kabristan (Graveyard) Bhavnagar Dispute Court, notwithstanding the pendency of Civil Suit No.13 of 1998 filed by the Trust itself in the Trial Court of Bhavnagar.
5. The grant of land in favour of Ghanchivad Memon Jamat is said to have been made in 1895 by the State of Bhavnagar and after Independence in 1947 it is said to have been fortified further by a Sanad issued in favour of the said Trust in the year 1965 under Section 133 of the Bombay Land Revenue Code, 1879 in prescribed of Schedule H of the said Land Revenue Code after holding an inquiry under Section 37(2) of the Land Revenue Code. But the problem started when the District Collector, Bhavnagar initiated proceedings for resumption of the said land in question and passed an order on 4.2.1993 on the ground that the land in question was granted to the said Trust and it could be used only as a Graveyard or Kabristan, but since the same was used for the commercial purposes also, by constructing the shops owned by them which were rented out to various Tenants as per the Government Resolution dated 12.9.1989, the same amounted to violation of the conditions and therefore, the land in question deserved to be resumed and vested in the State. The relevant portion of the order passed by the District Collector, Bhavnagar Mr. Sanjay Gupta on 4.2.1993, is quoted hereinbelow for ready Page 8 of 46 Downloaded on : Thu Jan 13 07:01:10 IST 2022 C/LPA/1055/2016 CAV JUDGMENT DT 8.3.21 PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar In Re: Kabristan (Graveyard) Bhavnagar Dispute reference:
"On examining the evidences and the proofs produced in this matter, it is evident that the property bearing Survey / Tika No.36/1 has been registered as graveyard in the year 1895 and the verification of the rights has been done in the year 1966, which is situated in City Survey No.7619/7630, wherein also, this land is mentioned as the graveyard land, where, it has been registered as Ganchiwad Masjid and Kabristan. As per Section 38 of the Land Revenue Code and Rule 17(1) thereof, for earmarking the land for graveyard or crematorium, the Collector is the competent officer. Section 38 itself clearly lays down that the land earmarked for the public purpose shall not be used for any other purpose. In this case, it is revealed that the shops are constructed. Further, as per the Government Resolution dated 12.09.1989, as is resolved, it is necessary that such a land earmarked is used for the purpose of cremation, burial place or graveyard. Further, with a view to see that such a land is used by the general public with harmony, without any dispute and that no person or the institution uses such an earmarked land for any other purpose or encroaches the same and with a view to see that no unnecessary harassment is caused to the people of the concerned community and their religious sentiments are not offended and to see that the peace prevails.Page 9 of 46 Downloaded on : Thu Jan 13 07:01:10 IST 2022
C/LPA/1055/2016 CAV JUDGMENT DT 8.3.21 PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar In Re: Kabristan (Graveyard) Bhavnagar Dispute However, if, in case, there arises any such disputes, then, as per the current instructions, which are in force, a committee of the local persons can be made, subject to certain terms and conditions, and they can be handed over the administration of such a land and in my opinion, the same has to be applied in this case. Thus, in regard to the property / land situated in Ward No.3, bearing City Survey No.7619 and 7630 of Bhavnagar City, following final order is passed.
ORDER: Land situated in Ward No.3, bearing City Survey No.7619 and 7630 of Bhavnagar City, is ordered to be taken back in favour of the State and with a view to see that this land is being used only for the purpose of graveyard, as per the provisions of the Government Resolution, bearing No.JMN/3989/539/G, dated 12.09.1989, necessary procedure is ordered to be initiated immediately and to be completed within 30 days by the City Mamlatdar.
Today, i.e. on 04.02.1993, pronounced with my signature and seal. To be circulated.
Certified: (Sanjay Gupta)
Chitnish to Collector Collector
Bhavnagar District, Bhavnagar"
6. The Government Resolution dated 12.9.1989 referred to in the said order of District Collector dated 4.2.1993 is also quoted Page 10 of 46 Downloaded on : Thu Jan 13 07:01:10 IST 2022 C/LPA/1055/2016 CAV JUDGMENT DT 8.3.21 PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar In Re: Kabristan (Graveyard) Bhavnagar Dispute below for ready reference:
"સમશાન માટે , મૃતદે હને દફનાવવા માટે સમાિધસથળ તથા કબસતાન માટે નીમ થયેલી સરકારી જમીનનો વહીવટ સથાિનક લોકોની સિમિતને સોપવા બાબત.
ગુજરાત સરકાર, મહેસૂલ િવભાગ, ઠરાવ કરમાંક : જમન-૩૯૮૯-મ૩૯-ગ, સિચવાલય, ગાંધીનગર, તા.૧૨-૦૯-૧૯૮૯.
વં ચાણમાં લીધા :-
(૧) મહે સૂલ િવભાગનો પિરપત કમાંક : જમન-૩૯૮૭-૩૫૭૫-ગ, તા.૦૮-૦૯/૧૯૮૭. (૨) મહે સૂલ િવભાગનો પિરપત કમાંક : જમન-૩૯૮૮-૧૧૧૬૭૨-ગ, તા.૨૩/૦૧/૧૯૮૯. (૩) સામાનય વહીવટ િવભાગનો પિરપત કમાંક : ફરજ-૧૦૮૯-૪૮૩-વસુતાપ(૫), તા.૨૧/૦૧/૧૯૮૯.
ઠ રા વ.
સને ૧૮૭૯ ના, મુંબઈ જમીન મહે સૂલ અિધિનયમની કલમ-૩૮ તથા સને ૧૯૭૨ ના ગુજરાત જમીન મહે સૂલ િનયમોના િનયમ ૭૩ (૧) અનુસાર મૃતદે હો દફનાવવા માટે , કબસતાન માટે તથા સમશાનના હે તસ ુ ર સરકારી જમીન નીમ કરવા કલેકટર સકમ છે અને તે હે તુ માટે જ જમીન નીમ ન થઈ હોય તો જમીન નીમ કરવા કાયરવાહઈ કરવા સંદભર (૧) તથા (૨) માં દશારવેલા પિરપતોથી િજલા કલેકટરોને સુચના આપવામાં આવી છે .
૨. આ પકારે નીમ થયેલી સરકારી જમીનનો અિગ સંસકાર કરવા, સમાિધસથળ તરીકે કે કબસતાન તરીકે જ યોગય ઉપયોગ થાય તે આવશયક છે . િખસતી તથા મુસલીમ કોમ ઉપરાંત કે ટલાક હિરજનો તથા વાઘરી કોમમાં પણ મૃતદે હ દફનાવવાની પરંપરા છે . તેથી તે હે તુસર નીમ થયેલી જમીનનો જે તે લોકો મતભેદો વગર જમીનનો સારી રીતે ઉપયોગ કરે અને કોઈપણ વયિકત કે સંસથા ઉપરોકત હે તુસર નીમ થયેલી જમીન પર અનય પકારનો ઉપયોગ અથવા ગેર કાયદે સર દબાણ ન કરે અને જે તે વગર કે કોમના લોકોને હક હે રાનગિત ન થાય, તેમની ધાિમરક લાગણી ન દુ ભાય તેમજ લોકોમાં માહો માહ સંપ અને શાંિત જળવાઈ રહે તે જવા સરકાર ઉતસુક છે . જે ગામ / શહે રમાં જમીનની ફાળવણી તથા વહીવટ માટે મતભેદો હોય તયાં સમશાન માટે તેમજ મૃતદે હને દફનાવવા માટે સમશાન, સમાિધસથળ અને કબસતાન માટે નીમ થયેલી સરકારી જમીનનો તે હે તુ સાર વયવિસથત ઉપયોગ થાય તે માટે તેવી જમીનનો વહીવટ જે તે કોમ / વગરના સથાિનક લોકોની બનેલી વહીવટી સિમિતને સોપવાનું સરકારની િવચારણા હે ઠળ હતું. કાળજભરી િવચારણાને અંતે સરકારે નકી કયુર છે કે , જયાં આવી જમીનની યોગય જળવણી તથા વહીવટ કરવા માટે સથાિનક લોકોમાં મતભેદો પવતરતા હોય તયાં, સને ૧૯૭૨ ના મુંબઈ જમીન મહે સૂલ અિધિનયમની કલમ - ૩૮ તથા સને ૧૯૭૨ ના ગુજરાત જમીન મહે સૂલ િનયમોના િનયમ ૭૩ (૨) ની જગવાઈ મુજબ સમશાન Page 11 of 46 Downloaded on : Thu Jan 13 07:01:10 IST 2022 C/LPA/1055/2016 CAV JUDGMENT DT 8.3.21 PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar In Re: Kabristan (Graveyard) Bhavnagar Dispute માતે, મૃતદે હ દફનાવવા સમાિધસથળ માટે તથા કબસતાન માટે નીમ કરવામાં આવેલી જમીનનો જે તે કામ માટે સારી રીતે ઉપયોગ થાય તે પમાણે વહીવટ કરવાજે તે ગામ / શહે રનાં જે તે વગરના સથાિનક લોકોની એક સિમિત બનાવી સિમિતને નીમ થયેલી જમીનનો વહીવટ તે હે તુ માટે , કે ટલીક ચોકસ શરતોને આધીન રહીને, સોપવો જેથી તે હે તુ માટે જમીનનો ઉપયોગ કરવા િહંદુઓ, વાઘરીઓ, હિરજનો, િખિસતઓ તથા મુસલીમો નાહક મુશકે લીઓ અનુભવે નહી અને જે તે જમીનનો સારી રીતે ઉપયોગ કરી શકે . આવો વહીવટ નીચેની શરતોને આધીન રહીને કરવાનો રહે શે.
(૧) જે ગામ / શહે રમાં આવી જમીનના યોગય વહીવટ કરવા માટે લોકોમાં અંદરો અંદર મતભેદો પવતરતા હોય તયાં જે તે વગર/ જિતના સથાિનક લોકોની વધુમાં વધુ અિગયાર સભયોની એક સિમિત રહે શે. જે ગામ / શહે રોમાં મતભેદો ન હોય તયાં આવી સિમિત રચવી નહી.
(૨) સમશાન માટે , મૃતદે હ દફનાવવા સમાિધસથળ માટે તથા કબસતાન માટે ની જમીન ઉપર અનય કોઈ વયિકત અથવા સંસથા ગેરકાયદે સર દબાણ ન કરે તેટલા કારણસર આવી જમીનની ફરતી વાડ અથવા તારનું ફે નસીગ કરવા પાનત અિધકારી મંજુરી આપી શકશે . ફરતી વાડે ફે નસીગ બનાવવાના ખચરની જવાબદારી જે તે લોકોની રહે શે. (૩) ઉપરોકત હે તઓ ુ માટે નીમ થયેલી જમીનનો ઉપયોગ જ અનય કોઈ હે તુસર થતો માલુમ પડશે તો પાનત અિધકારીશી તેમની સતાની રએ તે જમીન કોઈપણ પકારના િવલંબ વગર િવના વળતર નોટીસે સરકાર હસતક પરત લઈ શકશે. (૪) સદરહુ જમીન ઉપર આનુષંિગક હે તુ િસવાયના અનય હે તુ માટે બાંધકામ થઈ શકશે નહી. (૫) આ પકારના હે તુઓ માટે નીમ થયેલી જમીનની માિલકી િનયમો અનુસાર સંપુણરપણે સરકરની રહે શે.
કોઈપણ સંજગોમાં આવી જમીન કોઈપણ સિમિત, કોઈપણ ટર સટ (વકફ) ના નામે તબદીલ કરવાની કે તેમના નામે ચઢાવવાની કાયરવાહી કરવાની રહે શે નહી. (૬) આવી જમીન ઉપર કોઈપણ નફાકારક પવૃિત થઈ શકશે નહી. અને તે જમીનનો ઉપયોગ જે હે તુ માટે જ થાય છે , તે અંગેની તકે દારી સિમિત તથા સથાિનક સતાવાળાઓએ રાખવાની રહે શે.
(૭) ઉપરોકત શરતો ઉપરાંત ગામ / શહે રની સથાિનક પિરિસથિત લકમાં રાખીને સિમિત તેને સવિવવેક અનુસાર બીજ યોગય શરતો લાદી શકશે.
૩. આવા હે તુ માટે નીમ થયેલી જમીનો ઉપર જ દબાણ થાય તો અથવા દુ રઉપયોગ થાતો Page 12 of 46 Downloaded on : Thu Jan 13 07:01:10 IST 2022 C/LPA/1055/2016 CAV JUDGMENT DT 8.3.21 PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar In Re: Kabristan (Graveyard) Bhavnagar Dispute જણાશે તો તેને દુ ર કરવાની જવાબદારી સિમિતની રહે શે.
૪. ઉપરોકત હે તુ માટે રચાયેલી સિમિત તએના ઉદે શો, પિરપુણર કરી શકે તેવીિસથિતમાં નવી તથા સથાિનક કાયદો અને વયવસથાની પિરિસથિત ઉપર તેની માઠી અસર પડે તેમ છે , તેવી કલેકટરશીને ખાતરી થાય તો કલેકટરશીને ખાતરી થાય તો કલેકટરશી સિમિતના સભયોને િવશવાસમાં લઈ સિમિતના સભયોને િવશવાસમાં લઈ સિમિતનો ભંગ કરી શકશે.
૫. આ સૂચનાઓનો અમલ કલેકટરશીઓએ તાતકાલીક કરવો.
ગુજરાત રાજયપાલશીના હુકમથી અને તેમના નામે આઈ. એન. સોલંકી સેકશન અિધકારી, મહે સુલ િવભાગ, ગુજરાત સરકાર"
English Translation of Government Resolution dated 12.9.1989 "To handover the management of government land assigned for cemetery, tomb and graveyard to bury dead body to the local people's committee...
Government of Gujarat Revenue Department Secretariat, Gandhinagar Resolution No.JMN3989539Ga Dated:12/09/1989 Read: (1) Circular No.JMN39873575Ga, Dated:
08/09/1987 of the Revenue Department;
(2) Circular No.JMN3988111672Ga, Dated:
23/01/1989 of the Revenue Department;
(3) Circular No.FRJ2089483Vsutapra(5),
Dated: 21/01/1989 of the General
Administration Department.
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C/LPA/1055/2016 CAV JUDGMENT DT 8.3.21
PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar In Re: Kabristan (Graveyard) Bhavnagar Dispute Resolution:
As per Section38 of the Bombay Land Revenue Code, 1879 and Rules73(1) of the Gujarat Land Revenue Rules, 1972, the Collector is competent authority to assign the government land for burial of deadbody, cemetery and graveyard and the District Collectors have been directed by the Circulars referred at Sr. No.(1) and (2) above to complete the procedure for allotment of the lands if not done.
2. The lands assigned in such manner are required to be utilized properly for the purpose of crematorium, tomb or graveyard only. There is ritual in some Harijan and Vaghri community besides Christian and Muslim Community to bury the dead body. Therefore, the government is eager to see that the lands assigned for the said purpose are utilized properly by the concerned people without any dispute, and that no individual person or institute uses it otherwise or make encroachment on the land assigned for the above purpose, and that the persons of the concerned caste or community do not face difficulties unnecessarily, and that their religious feelings do not get hurt and unity and peace be maintained amongst them. It was under consideration of the government to hand over the management to the local management committee of the concerned caste / Page 14 of 46 Downloaded on : Thu Jan 13 07:01:10 IST 2022 C/LPA/1055/2016 CAV JUDGMENT DT 8.3.21 PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar In Re: Kabristan (Graveyard) Bhavnagar Dispute community to look after the proper utilization of the lands assigned for crematorium, tomb and graveyard to bury the dead body in the village/city where there is difference of opinion for maintenance and administration of the assigned land.
After due consideration, the Government has decided that where there is difference of opinion prevailing amongst local people regarding proper maintenance and administration of such lands, as per Section - 38 of the Mumbai Land Revenue Act, 1879 and the Rule 73(1) of the Gujarat Land Revenue Rules, a committee of local people of respective village / city comprising of relevant sections shall be formed and the administration of the assigned land shall be handed over to the committee subject to certain conditions in order to utilize the lands offered for burial of dead bodies, tomb and burial grounds for relevant work. So that Hindus, Vaghris, Harijans, Christians and Muslims do not face unnecessary problems while using the lands for aforesaid purpose and relevant lands can be utilized properly. Such lands shall be utilized subject to the conditions mentioned below. (1) When difference of opinion is prevailing in relevant village/city regarding proper administration of such lands, a committee of maximum eleven members from local persons belonging to relevant class/caste shall be formed. Mamlatdar shall have the Page 15 of 46 Downloaded on : Thu Jan 13 07:01:10 IST 2022 C/LPA/1055/2016 CAV JUDGMENT DT 8.3.21 PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar In Re: Kabristan (Graveyard) Bhavnagar Dispute authority to form such committee. Such committee is not to be formed in village/city where difference of opinion does not exist.
(2) The Prant Officer can give permission for erecting hedge or wire fencing around the land in order to prevent unlawful encroachment of any person or organization on such land for crematorium, burial of dead body, tomb and cemetery. The expense for hedge or wire fencing around the land will be borne by people of the concerned community.
(3) If the land assigned for the aforementioned purpose is found to be used for any other purpose, the Prant Officer can vest the land with Government without any delay, compensation or notice by the authority vested in him.
(4) No construction for the purposes other than those ancillary shall be carried out on the said land. (5) Ownership of the assigned land for such purposes shall vest with the government as per the rules. No procedure for transferring or assigning such land to any committee, any trust (Waqf) shall be carried out in any circumstances.
(6) No profit making activity shall be carried out on such land and a care shall be taken by the committee and local authority that the land is used for the Page 16 of 46 Downloaded on : Thu Jan 13 07:01:10 IST 2022 C/LPA/1055/2016 CAV JUDGMENT DT 8.3.21 PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar In Re: Kabristan (Graveyard) Bhavnagar Dispute specified purpose.
(7) In addition to the above conditions, the committee may impose other appropriate conditions as per its discretion considering local situation of village/city.
3. If land offered for such purpose is found encroached upon or misused, the responsibility to remove the hindrances rests with the committee.
4. If the Collector is of the opinion that the committee formed for above mentioned purpose is not in a condition to fulfill its objectives and local law and order situation would be adversely affected, the Collector can dissolve the committee after securing confidence of the members of committee.
5. These instructions are to be followed by the Collectors with immediate effect.
By order and in name of the Governor of Gujarat.
(I.N. Solanki) Section Officer Revenue Department, Government of Gujarat"
7. In pursuance of the said order dated 4.2.1993 passed by the Collector, the Mamlatdar, Bhavnagar served a notice on Ghanchivad Memon Jamat, Navapura, Bhavnagar to hand over Page 17 of 46 Downloaded on : Thu Jan 13 07:01:10 IST 2022 C/LPA/1055/2016 CAV JUDGMENT DT 8.3.21 PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar In Re: Kabristan (Graveyard) Bhavnagar Dispute the possession of the land in question to the said Authority on 7.1.1998. It appears from the record that a revision came to be filed against the District Collector dated 4.2.1993 before the Additional Chief Secretary (Disputes), Revenue Department, Government of Gujarat also, who passed an order on 30.5.1998 upholding the said order dated 4.2.1993 of the District Collector.
The operative part of the said order dated 30.5.1998 passed by the Additional Chief Secretary (Disputes), Revenue Department, Government of Gujarat is also quoted hereinbelow for ready reference:
":ORDER:
As per the above particulars stated above, since the Collector, Bhavnagar has passed order on 4.2.93 as per the provisions of the resolution of the Revenue Department, Dated: 12.09.1989, that the entire land bearing City Survey No.7619 of 7630, situated in Ward No.3 of Bhavnagar City, is to be taken back in favour of the State Government and to ensure that the said land is used only for the purpose of graveyard, at present, there does not appear to be any ground to interfere. Therefore, this application for review is rejected."
8. Even though these proceedings were going on in the offices of District Collector, Mamlatdar and Additional Chief Secretary Page 18 of 46 Downloaded on : Thu Jan 13 07:01:10 IST 2022 C/LPA/1055/2016 CAV JUDGMENT DT 8.3.21 PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar In Re: Kabristan (Graveyard) Bhavnagar Dispute from the years 1993 to 1998, it appears that only when the Trust was again served a Notice for handing over the possession on 12.4.2002, then the said 42 Tenants suddenly chose to invoke the writ jurisdiction of this Court and filed the aforesaid Special Civil Application No.12594 of 2002 on 30.12.2002 which ultimately came to be dismissed by the learned Single Judge and against which the present Intra Court Appeal was filed by the said 42 Tenants out of about 100 Tenants there.
9. The learned Single Judge (Coram: Bela M. Trivedi, J.) dismissed the writ petition with the following observations, which are quoted hereinbelow for ready reference:
"13. After having heard the learned Counsels for the parties and taking into consideration the documents on record, it appears that the petitioners, though have claimed tenancy rights in respect of the shops allegedly situated on the lands in question, they have neither given any details in respect of such shops allegedly held by them, nor produced any documents to show that they are the tenants inducted by the respondent No.4 Trust. The petitioners have sought to invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India, without specifying their right or interest in the lands in Page 19 of 46 Downloaded on : Thu Jan 13 07:01:10 IST 2022 C/LPA/1055/2016 CAV JUDGMENT DT 8.3.21 PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar In Re: Kabristan (Graveyard) Bhavnagar Dispute question by making absolutely vague averments. The petition therefore deserves to be dismissed on that ground alone. As transpiring from the replies filed by the respondents, some of the petitioners along with other persons have already approached the Civil Court at Bhavnagar by filing various suits which facts have also not been disclosed by the petitioners in the petition. As stated herein above initially the petitioners had also not impleaded the respondent No.4 Trust as party respondent in the present petition, against whom the impugned orders were passed by the respondent authorities and which were also challenged by the respondent No.4 before various Courts at Bhavnagar and before the High Court, but failed to obtain any relief. It is needless to say that as per the settled legal position, the petitioners invoking extraordinary jurisdiction of the High Court in the writ under Article 226 of the Constitution are required to disclose true and correct facts and cannot play hide and seek by suppressing material facts from the Court. Beneficial reference of the decisions in case of Kishore Samrite Vs. State of Uttar Pradesh and Ors., reported in 2013(2) SCC 398, in case of K.D. Sharma Vs. Steel Authority of India Ltd. and Ors., reported in 2008 (12) SCC 481, in case of M/s.Tilokchand Motichand & Ors. Vs. H.B. Munshi & Anr., reported in 1969 (1) SCC 110 be made in this regard.Page 20 of 46 Downloaded on : Thu Jan 13 07:01:10 IST 2022
C/LPA/1055/2016 CAV JUDGMENT DT 8.3.21 PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar In Re: Kabristan (Graveyard) Bhavnagar Dispute
14. Hence, apart from the facts that the petitioners have not disclosed true and correct facts in the petition, and that such a common petition on the basis of vague averments is not maintainable in the eye of law, there are number of disputed questions of facts involved in the petition, which could not be gone into by this Court in the petition under Article 226 of the Constitution of India. There is nothing on record to suggest that the petitioners are in possession of the alleged shops put up on the lands in question, except the bare and vague averments made by them in the petition.
15. It is pertinent to note that the respondent No.4 Trust has conveniently remained silent in the present petition by not filing any reply. During the course of hearing also nobody has remained present on behalf of the respondent No.4 Trust. However, from the averments made in the petition and from the replies filed by the respondent State authorities and the respondent No.11, it appears that the respondent No.4 Trust had filed various litigations challenging the action of the respondent authorities, and had failed to obtain any orders in its favour. Since the suits filed by the respondent No.4 Trust and by some of the petitioners appear to be pending before the concerned Courts at Bhavnagar, this Court is not dwelling much on rights of the petitioners qua the respondent No.4. The judgements relied upon by learned Sr. Advocate Mr.Thakore for the petitioners have no relevance to the Page 21 of 46 Downloaded on : Thu Jan 13 07:01:10 IST 2022 C/LPA/1055/2016 CAV JUDGMENT DT 8.3.21 PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar In Re: Kabristan (Graveyard) Bhavnagar Dispute facts of the present case, as the petitioners have failed to produce any material to show that they were in possession of or they had any right over the land in question.
16. In view of the above, the petitioners having failed to establish any violation of legal right, much less fundamental right qua the land in question, and since the petition involves disputed questions of facts, the Court is not inclined to entertain the same. The petition being devoid of merits, deserves to be dismissed and the same is hereby dismissed. Rule is discharged."
10. Mr. Mihir Thakor, learned Senior Counsel urged before us that the land in question always vested in the said Trust and was also declared as its Assets in the relevant form when the said Trust was registered in the year 1962 under the Bombay Public Trusts Act and right after the grant of the land in question for 'Kabristan' in the State of Bhavnagar in 1895, a 'Sanad' was further issued in its favour in 1965 after inquiry under Section 37(2) of the Bombay Land Revenue Code, 1879 and therefore, there was no question of the State assuming its powers to divest the said Trust of its ownership right over the land in question treating the same as a Grant under provisions of Section 38 of the Land Revenue Code. He further submitted that there was no Page 22 of 46 Downloaded on : Thu Jan 13 07:01:10 IST 2022 C/LPA/1055/2016 CAV JUDGMENT DT 8.3.21 PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar In Re: Kabristan (Graveyard) Bhavnagar Dispute restriction or condition in the said grant or 'Sanad' imposed at any point of time, i.e. user will be only the restricted to 'Kabristan (Graveyard)' and therefore, on the alleged ground of its nonuser or user for other purposes, like construction of shops and renting them out, could not furnish a ground for divesting the Trust of its ownership rights and vesting the same in the State.
11. The learned Senior Counsel Mr. Mihir Thakore emphasised that while Section 37 of the Land Revenue Code envisages that all public roads, lanes and paths, bridges, lands, etc. which are not the property of individuals, or persons legally capable of holding property, shall vest in the State. The exception to Section 37(1) is Section 37(2) where a person can claim any right over the property and it shall be lawful for the Collector or a Survey Officer, after a formal inquiry to pass an order deciding the claim Subsection (3) of Section 37 further provides that any party either such individual or State can file a suit in a Civil Court within one year of such order passed under Section 37(1) or 37(2) of the Code. He submitted that Section 38 authorises the State Government to assign any land belonging to State for any special purpose which only can be taken back, if such land is not used for the specified special purpose, but he submitted that the land in Page 23 of 46 Downloaded on : Thu Jan 13 07:01:10 IST 2022 C/LPA/1055/2016 CAV JUDGMENT DT 8.3.21 PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar In Re: Kabristan (Graveyard) Bhavnagar Dispute question first should belong to the State in the inquiry / civil suit envisaged under Section 37 of the Code, which, he submitted in the present case, was found to be belonging to the Trust itself and never to the State and therefore, the District Collector could not have passed the order on 4.2.1990. He also drew attention to Section 133 of the Code which provides for such 'Sanad' to be granted to the Holder of any building site or land in prescribed form of Schedule H. He also drew attention to Section 68 of the Code, wherein the occupant's rights are only conditional, but that of the original grantee, like the Trust in question was not restricted.
12. On the other hand, Mr. Meet Thakkar, learned Assistant Government Pleader appearing for the State supported the order of the learned Single Judge and pointed out that the present matter is not only replete with various litigations for last so many years and he mentioned various civil suits pending before the Civil Courts, but mainly Mr. Meet Thakkar contended that the Tenants of the shops in question who are fighting in the writ jurisdiction of this Court in the present Intra Court Appeal as well as in the Special Civil Application before the learned Single Judge are only the front covers and they have no locus standi to claim Page 24 of 46 Downloaded on : Thu Jan 13 07:01:10 IST 2022 C/LPA/1055/2016 CAV JUDGMENT DT 8.3.21 PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar In Re: Kabristan (Graveyard) Bhavnagar Dispute any proprietary rights over the land in question and it is only the Trust who can defend its Title against the order passed by the District Collector on 4.2.1990. He submitted that the Trust is already doing so by filing Civil Suit No.13 of 1998 which is admitted by the other side. He submitted that the Tenants can claim their rights of tenancy only through the landlord or owner viz. the Trust, if at all, and therefore, even though the eviction Notices were given only to the Trust and not to the Tenants, some of the Tenants have come forward by filing this writ petition, which is not maintainable. He submitted that while Tenants so coming to this Court, have conveniently suppressed the facts of civil suits filed by some of them also and the main Civil Suit No.13 of 1998 filed by the Trust itself under the guise that they were not the parties in such civil suit, but he submitted that some of the civil suits were even filed by some of the Tenants only and they cannot plead ignorance about the same.
13. The following details of Civil Suits and related other legal proceedings in this matter which have been filed by the Trust or the Appellants / Tenants, as were submitted by the learned counsel for the Appellants / Tenants in the List of Dates and Events submitted in the Court on 3.3.2021, are quoted below as Page 25 of 46 Downloaded on : Thu Jan 13 07:01:10 IST 2022 C/LPA/1055/2016 CAV JUDGMENT DT 8.3.21 PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar In Re: Kabristan (Graveyard) Bhavnagar Dispute submitted:
Sr. Name of the Parties Case No. Court Nature of the Status/ No. proceedings Other particulars PROCEEDINGS INITIATED BY GHANCHIWAD MEMAN JAMAT TRUST ('TRUST') 1 Ghanchiwad Meman Regular Civil Judge Seeking permanent • The Court passed an Jamat Trust through Civil Suit Senior Division, injunction against order dated its Trustees 762 of 1997 Bhavnagar burying of dead 29.11.1997 rejecting bodies in the land the temporary
1. Abdul Majid in question. injunction Kasambhai *NOTE* application of the Meman Copy of the Plaintiffs.
plaint is
2. Anwar enclosed • Suit withdrawn on Hajihussain herewith at 24.6.2007 Bordiwala Pg.Nos. 8 to 20
3. Faruqbhai Allarakhbhai Civil Misc. District Court, Challenging the Dismissed by order Adhiya App. No. Bhavnagar order dated dated 13.4.1998.
4. Umarbhai 233 of 1997 29.11.1997 passed Abubakarbhai by the Civil Judge Tinwala (S.D.), Bhavnagar in RCS No.762 of 1997
5. Mushtaqbhai Alibhai Sheikh Civil High Court of Challenging the Rejected by order
6. Ahmedbhai Gujarat order dated dated 30.10.2002 on Revision Yusufbhai 13.4.1998 passed by the ground of Application Lota the District Court, maintainability in view No.1769 of 1998 Bhavnagar in Civil of the amendment of Versus Misc. App. No.233 Section 115 of the CPC.
of 1997.
1. State of Gujarat
2. The Collector, Bhavnagar
3. The Deputy Superintendent of Police, Bhavnagar
4. City, Mamlatdar Bhavnagar
5. City DYSP, Bhavnagar
6. Police Inspector, C Division Station, Bhavnagar
7. Prant Adhikari (Revenue),
8. Commissioner Bhavnagar Municipality,
9. Alibhai Sopariwala (Sitadar)
10. Hanifbhai
11. Satarbhai Page 26 of 46 Downloaded on : Thu Jan 13 07:01:10 IST 2022 C/LPA/1055/2016 CAV JUDGMENT DT 8.3.21 PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar In Re: Kabristan (Graveyard) Bhavnagar Dispute Sr. Name of the Parties Case No. Court Nature of the Status/ No. proceedings Other particulars 2 Appeal filed by Additional Challenging the Rejected by order Ghanchiwad Meman Chief Secretary, order dated dated 30.5.1998 on the Jamat Trust against Revenue Dept. 4.2.1993 passed by ground that same has order dated 4.2.1993 the Collector, already been passed by Collector, Bhavnagar challenged in Regular Bhavnagar. Civil Suit No.13 of 1998.
3 Ghanchiwad Meman Regular Civil Judge • Seeking • Application (Exhibit Jamat throught its Civil Suit Senior Division, declaration that 77) seeking Trustees No. 13 of Bhavnagar the land in amendment to 1998 question is the challenge order
1. Abdul Majid absolute dated 30.5.1998 Kasambhai property of the passed by Additional Meman Trust. Chief Secretary, Revenue
2. Anwar • Challenging the Department was Hajihussain order of the rejected by an order Bordiwala Collector dated dated 12.2.1999.
4.2.1993.
3. Faruqbhai • First injunction Allarakhbhai • An application application was Adhiya rejected by order (Exhibit 77) was filed seeking dated 22.6.2001
4. Umarbhai permission to Abubakarbhai amend the plaint • Second injunction Tinwala in order to application was challenge order rejected by order
5. Mushtaqbhai dated 30.5.1998 dated 5.5.2009.
Alibhai Sheikh passed by Additional Chief
6. Ahmedbhai Secretary, • Suit disposed of by Yusufbhai Lota order dated Revenue Department. 18.12.2018 Ordered Versus to be returned as per the provisions of
1. The State of Order 7, Rule 10 of Gujarat CPC.
2. The Collector, Civil High Court of Challenging the Allowed by order dated Bhavnagar Revision Gujarat order dated 27.6.2002, thereby Application 12.2.1999 passed permitting amendment
3. The Mamlatdar, No. 411 of by the Civil Judge in RCS No.13 of 1998.
Bhavnagar 1999 (S.D.) in RCS No.13
of 1998, rejecting
4. District Land Exhibit 77 seeking
Record Office & amendment.
City Survey
Officer Civil Misc. District Court, Challenging the Dismissed by order
Appeal Bhavnagar order dated dated 12.4.2002
5. Sunni Muslim 22.6.2001 passed
No.61 of
Samaj by the Civil Judge
2001
(S.D.), Bhavnagar in
RCS No.13 of 1998
Civil High Court of Challenging the Rejected by order
Revision Gujarat order dated dated 30.10.2002 on
Application 12.4.2002 passed the ground of
No. 522 of by the District maintainability in view
2002 Court, Bhavnagar of the amendment of
in Civil Misc. Section 115 of the CPC.
Appeal No.61 of
2001.
Civil Misc. District Court, Challenging the Order dated 4.8.2011
Appeal Bhavnagar order dated passed directing the
No.58 of 5.5.2009 passed by parties to maintain
2009 the Civil Judge status quo.
(S.D.), Bhavnagar in
RCS No.13 of 1998
Page 27 of 46
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C/LPA/1055/2016 CAV JUDGMENT DT 8.3.21
PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar In Re: Kabristan (Graveyard) Bhavnagar Dispute Sr. Name of the Parties Case No. Court Nature of the Status/ No. proceedings Other particulars Civil Misc. Civil Judge Seeking review of Pending Application Senior Division, Order dated (Next Listing Date No. 6 of Bhavnagar 18.12.2018 under 20.3.2021) 2019 Order 47 Rule 1 of CPC with the prayer that the RCS No.13 of 1998 be transferred to Wakf Board, and not returned under Order 7 Rule 10 of CPC.
4. Ghanchiwad Meman Regular Civil Judge Suit for Declaration Pending Jamat throught its Civil Suit Senior Division, and Injunction, (Next Listing Date Trustees 752 of 2002 Bhavnagar challenging the 20.3.2021) order dated
1. Abdul Majid 24.12.2002 passed Kasambhai by the Mamalatdar, Meman Bhavnagar.
2. Anwar Hajihussain Bordiwala
3. Faruqbhai Allarakhbhai Adhiya
4. Umarbhai Abubakarbhai Tinwala
5. Iqbalbhai Arab
6. Ahmedbhai Yusufbhai Lota Versus
1. The State of Gujarat
2. The Mamlatdar, Bhavnagar
3. The Collector, Bhavnagar
4. District Land Record Office & City Survey Officer
5. Sunni Muslim Samaj
5. Ghanchiwad Meman Regular Civil Judge • Alleging that the Pending Jamat and its Civil Suit Senior Division, proceedings (Next Listing Date Trustees No. 415 of Bhavnagar undertaken by 20.3.2021) 2008 the authorities
1. Abdul Majid are in breach of Kasambhai the temporary Meman injunctions granted by the
2. Anwar Court in RCS Hajihussain No.13 of 1998 Bordiwala and RCS No.752 of 1992.
Page 28 of 46 Downloaded on : Thu Jan 13 07:01:10 IST 2022 C/LPA/1055/2016 CAV JUDGMENT DT 8.3.21 PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar In Re: Kabristan (Graveyard) Bhavnagar Dispute Sr. Name of the Parties Case No. Court Nature of the Status/ No. proceedings Other particulars
3. Faruqbhai • Seeking status Allarakhbhai quo ante in Adhiya respect of the construction of
4. Umarbhai 21 mtr. road Abubakarbhai through the Tinwala said land.
5. Iqbalbhai Arab
6. Ahmedbhai Yusufbhai Lota Versus
1. The State of Gujarat
2. The Collector, Bhavnagar
3. The Mamlatdar, Bhavnagar
4. Commissioner, Bhavnagar Municipality PROCEEDINGS INITIATED BY TENANTS** OF THE LAND (**TENANTS OTHER THAN THE PETITIONERS BEFORE THE HIGH COURT, UNLESS SPECIFIED)
6. Tajmahmad Regular Civil Judge Details not Disposed of Hasanbhai Civil Suit Senior Division, available No.244 of Bhavnagar Versus 1999
1. The State of Gujarat
2. Collector
3. City Mamalatdar
4. Commissioner
7. Ismailbhai Regular Civil Judge Details not Dismissed for non Ibrahimbhai Civil Suit Senior Division, available prosecution Ghiwala No.753 of Bhavnagar 2002 Versus
1. The State of Gujarat
2. Collector
3. City Mamalatdar
4. Sunni Muslim Samaj
8. 1. Shabbirbhai Regular Civil Judge • Seeking Pending Sattarbhai Civil Suit Senior Division, declaration that (Next Listing Date Lakhani No. 755 of Bhavnagar the plaintiffs are 20.3.2021) 2002 legal tenants.
2. Himaliya Ice Factory Regd.
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3. Abdullamiya Date of • Seeking Dadamiya Filing: injunction from 30.12.2002 dispossession.
4. Safibhai Ahamadbhai • Challenging the *NOTE* Petitioner order of the
5. Ibrahimbhai Collector dated Hasambhai No. 31 before High 4.2.1993.
6. Rameshbhai J. Court is Plaintiff • Challenging the Mehta No.6 in RCS order dated No.755 of 30.5.1998 passed
7. Mohmadarifbh 2002. by Additional ai A.Kadarbhai Chief Secretary, Revenue
8. Meman Haji Department.
Usman Haji Janmohmad • Challenging the
9. Meman order dated Mohmadbhai 24.12.2002 Jusabbhai passed by the Mamalatdar,
10. Shekh Bhavnagar.
Tajmohmad Hasanbhai
11. Meman Yusufbhai Usmanbhai
12. Usmanbhai Rediater Versus
1. The State of Gujarat
2. The Collector, Bhavnagar
3. Special Secretary
4. The Mamlatdar, Bhavnagar
5. Sunni Muslim Samaj
9. Abdulaji Harunbhai Regular Civil Judge • Seeking Pending Civil Suit Senior Division, declaration that (Next Listing Date Versus No. 3 of Bhavnagar the plaintiff is a 20.3.2021) 2003 legal tenant.
1. The State • Seeking
2. The Collector, injunction from Bhavnagar dispossession.
3. Special • Challenging the Secretary, order of the State of Collector dated Gujarat 4.2.1993.
4. The • Challenging the Mamlatdar, Bhavnagar order dated 30.5.1998 passed by Additional Chief Secretary, Page 30 of 46 Downloaded on : Thu Jan 13 07:01:10 IST 2022 C/LPA/1055/2016 CAV JUDGMENT DT 8.3.21 PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar In Re: Kabristan (Graveyard) Bhavnagar Dispute Sr. Name of the Parties Case No. Court Nature of the Status/ No. proceedings Other particulars
5. Sunni Muslim Revenue Samaj Department.
• Challenging the
order dated
24.12.2002
passed by the
Mamalatdar,
Bhavnagar.
10. 1. Abdulkhalid Regular Civil Judge • Seeking Pending
Abdulkadar Civil Suit Senior Division, declaration that (Next Listing Date
No. 4 of Bhavnagar the plaintiffs are 20.3.2021)
2. Hajibhai 2003 legal tenants.
Karimbhai
• Seeking
3. Ahmad injunction from
Hasanbhai dispossession.
4. Gunjan • Challenging the
Rameshbhai order of the
Mehta Collector dated
4.2.1993.
Versus
• Challenging the
1. The State of
Gujarat order dated
30.5.1998 passed
2. The Collector, by Additional
Bhavnagar Chief Secretary,
Revenue
3. Special Department.
Secretary, State
of Gujarat • Challenging the
order dated
4. The Mamlatdar, 24.12.2002
Bhavnagar passed by the
Mamalatdar,
5. Sunni Muslim Bhavnagar.
Samaj
11. 1. Gulamhussain Regular Civil Judge • Seeking Pending
Ibrahimbhai Civil Suit Senior Division, declaration that (Next Listing Date
No.7 of Bhavnagar the plaintiffs are 20.3.2021)
2. Mohmmadrafiq 2003 legal tenants.
Gulamhussain
• Seeking
Versus injunction from
dispossession.
1. The State of
Gujarat
2. The Collector,
Bhavnagar
3. Special
Secretary, State
of Gujarat
4. The Mamlatdar,
Bhavnagar City
5. Sunni Muslim
Samaj
12. 1. Abdulrazak Regular Civil Judge • Seeking Pending
Ibhrahimbhai Civil Suit Senior Division, declaration that (Next Listing Date
No. 8 of Bhavnagar the plaintiffs are 20.3.2021)
2. Mohmmad Iqbal 2003 legal tenants.
Gulamhussain
Page 31 of 46
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PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar In Re: Kabristan (Graveyard) Bhavnagar Dispute Sr. Name of the Parties Case No. Court Nature of the Status/ No. proceedings Other particulars Versus *NOTE* • Seeking Petitioner injunction from
1. The State of No. 30 dispossession.
Gujarat before High
Court is
2. The Collector, Plaintiff
Bhavnagar No.1 in RCS
No.8 of
3. Special 2003.
Secretary, State
of Gujarat
4. The Mamlatdar,
Bhavnagar City
5. Sunni Muslim
Samaj
13. 1. Azizbhai Regular Civil Judge • Seeking Pending
Ahmedbhai Civil Suit Senior Division, declaration that (Next Listing Date
No. 18 of Bhavnagar the plaintiffs are 20.3.2021)
2. Yakub Khan 2003 legal tenants.
Pathan
• Seeking
Versus injunction from
dispossession.
1. The State of
Gujarat • Challenging the
order of the
2. The Collector, Collector dated
Bhavnagar 4.2.1993.
3. Special
• Challenging the
Secretary, State
of Gujarat order dated
30.5.1998 passed
4. The Mamlatdar, by Additional
Chief Secretary,
Bhavnagar City
Revenue
Department.
5. Sunni Muslim
Samaj
• Challenging the
order dated
24.12.2002
passed by the
Mamalatdar,
Bhavnagar.
14. 1. Gulamhussain Regular Civil Judge • Seeking Pending
Ibrahimbhai Civil Suit Senior Division, declaration that (Next Listing Date
No. 19 of Bhavnagar the plaintiffs are 20.3.2021)
2. Abdulrazak 2003 legal tenants.
Ibhrahimbhai
• Seeking
3. Mohammadrafiq *NOTE* injunction from
Gulamhussain Petitioner dispossession.
No. 32
Versus before High
Court is
1. The State of Plaintiff
Gujarat No.2 in RCS
No.19 of
2. The Collector, 2003.
Bhavnagar
3. Special
Secretary, State
of Gujarat
4. The Mamlatdar,
Bhavnagar City
Page 32 of 46
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PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar In Re: Kabristan (Graveyard) Bhavnagar Dispute Sr. Name of the Parties Case No. Court Nature of the Status/ No. proceedings Other particulars
5. Sunni Muslim Samaj
15. 1. Mahmadhanif Regular Civil Judge Details not Dismissed for non AbdulSatar Civil Suit Senior Division, available prosecution No. 21 of Bhavnagar
2. Irfanbhai 2003 Asrafbhai Lakhani
3. Ibrahim Bhai Ahmadbhai Lota Versus
1. The State of Gujarat
2. The Collector, Bhavnagar
3. Special Secretary, State of Gujarat
4. The Mamlatdar, Bhavnagar City
16. 1. Satarbhai Regular Civil Judge • Seeking Pending Kasimbhai Civil Suit Senior Division, declaration that (Next Listing Date Dariya No. 22 of Bhavnagar the plaintiffs are 20.3.2021) 2003 legal tenants.
2. Roshanben Kasim • Seeking injunction from Versus dispossession.
1. The State of • Challenging the Gujarat order of the Collector dated
2. The Collector, 4.2.1993.
Bhavnagar • Challenging the
3. Special order dated Secretary, State of Gujarat 30.5.1998 passed by Additional
4. The Mamlatdar, Chief Secretary, Revenue Bhavnagar City Department.
5. Sunni Muslim Samaj • Challenging the order dated 24.12.2002 passed by the Mamalatdar, Bhavnagar.
17. Jusabbhai Regular Civil Judge • Seeking Pending Ahmedbhai Civil Suit Senior Division, declaration that (Next Listing Date No. 36 of Bhavnagar the plaintiffs are 20.3.2021) Versus 2003 legal tenants.
1. The State of • Seeking Gujarat injunction from dispossession.
2. The Collector, Bhavnagar Page 33 of 46 Downloaded on : Thu Jan 13 07:01:10 IST 2022 C/LPA/1055/2016 CAV JUDGMENT DT 8.3.21 PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar In Re: Kabristan (Graveyard) Bhavnagar Dispute Sr. Name of the Parties Case No. Court Nature of the Status/ No. proceedings Other particulars
3. Special • Challenging the Secretary, State order of the of Gujarat Collector dated 4.2.1993.
4. The Mamlatdar, Bhavnagar City • Challenging the order dated
5. Sunni Muslim 30.5.1998 passed Samaj by Additional Chief Secretary, Revenue Department.
• Challenging the
order dated
24.12.2002
passed by the
Mamalatdar,
Bhavnagar.
18. 1. Ajitbhai Regular Civil Judge Details not Dismissed for non
Ismailbhai Civil Suit Senior Division, available prosecution
Solanki No. 39 of Bhavnagar
2003
2. Abdulbhai
Pirbhai Solanki
3. Yasinbhai
Murtujabhai
Malek
Versus
1. State of Gujarat
2. Collector
3. State of Gujarat
(Sp.Secretary)
4. City
Mamalatdar
14. Mr. Meet Thakkar, learned Assistant Government Pleader, therefore, submitted that not only multiple abuse of process of law is happening in the present case dragging the State in the whirlpool, but the State was fully justified in divesting the Trust itself of its proprietary rights and vesting the same in the State by the order dated 4.2.1990 of the District Collector, Bhavnagar which was upheld by the Additional Chief Secretary also. He also Page 34 of 46 Downloaded on : Thu Jan 13 07:01:10 IST 2022 C/LPA/1055/2016 CAV JUDGMENT DT 8.3.21 PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar In Re: Kabristan (Graveyard) Bhavnagar Dispute drew attention of the Court towards the Undertakings given by all these Tenants before the learned Single Judge in pursuance of an interim order passed by the learned Single Judge (Coram: D.P. Buch, J.) on 30.12.2002, in which, vide para 3 of their Undertakings, which are produced on record, as the Tenants undertook before the Court to hand over the vacant possession within a period of one week from the date of disposal of the writ petition or the interim relief being vacated subject to any further order/s that may be passed by the Court in this behalf. He submitted that the Tenants have never complied with the said Undertaking after dismissal of the writ petition by the learned Single Judge on 23.9.2016.
15. Mr. Meet Thakkar, learned Assistant Government Pleader also sought to justify the order passed by the District Collector on 4.2.1990 on the ground that the land in question was always bound to be used only for the purpose of 'Kabristan' (Graveyard) and therefore, its commercial use in the form of construction of shops and renting them out to the various tenants was in breach of such purpose, for which the land in question was granted to them to the Trust and the State was empowered to resume the land under Section 38 of the Land Revenue Code irrespective of Page 35 of 46 Downloaded on : Thu Jan 13 07:01:10 IST 2022 C/LPA/1055/2016 CAV JUDGMENT DT 8.3.21 PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar In Re: Kabristan (Graveyard) Bhavnagar Dispute condition imposed or not in 'Sanad' or Grant of 1895 and use it for the public purposes as considered appropriate by the State in view of the Government Resolution dated 12.9.1989 quoted above.
16. Mr. Meet Thakkar, learned Assistant Government Pleader, therefore, submitted that on the aforesaid grounds and objections, the learned Single Judge was justified in dismissing the writ petition and the present Intra Court Appeal filed by Tenants being devoid of any merit, is also liable to be dismissed.
17. There is yet another angle to this litigation which was added by Respondent No.11 Sunni Muslim Samaj, Bhavnagar, which is a different sect other than the one, to which the said land was originally granted for the purpose of Kabristan (Graveyard) and learned counsel Mr. A.S. Asthavadi appearing for Appellant submitted that he supports the arguments of the learned Assistant Government Pleader and he drew attention of the Court towards the application filed by the said impleaded party Sunni Muslim Samaj under Article 226(3) of the Constitution of India for vacating the ex parte stay order granted by the learned Single Judge in Special Civil Application No.12594 of 2002, in which in Page 36 of 46 Downloaded on : Thu Jan 13 07:01:10 IST 2022 C/LPA/1055/2016 CAV JUDGMENT DT 8.3.21 PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar In Re: Kabristan (Graveyard) Bhavnagar Dispute para 9 thereof, he pointed out the pendency of various civil suits filed by the Tenants and on the ground of this conduct, the interim relief deserved to be vacated. Para 9 of the said Application under Article 226(3) filed by Sunnin Muslim Samaj is quoted hereinbelow for ready reference to give a ready reference to the pending suits filed by the Tenants:
"9. The petitioners have not disclosed all the facts before the Hon. High Court and concealed as under:
i) The petitioner No.16 (Sabir Abdul Sattar Memon) & 31 (Rameshchandra Jayantilal Mehta) have filed Civil Suit 755/2002 on the same date i.e. 30.12.2002 on the same subject matter and against the same Opponents for stay order in Bhavnagar Court.
ii) The petitioner No.40 (Sabirbhai Hassanbhai Shaikh) has also filed Civil Suit No.245/99 which is dismissed by the lower Court in Bhavnagar.
iii) The other 18 associated tenants have filed the Civil Suits No.753/2002, 3/2003, 4/2003, 7/2003, 8/2003, 18/2003, 19/2003, 21/2003 & 22/2003 on the same subject matter against the same Opponents in Bhavnagar Civil Courts.
In view of the facts stated above the applicant pray for Page 37 of 46 Downloaded on : Thu Jan 13 07:01:10 IST 2022 C/LPA/1055/2016 CAV JUDGMENT DT 8.3.21 PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar In Re: Kabristan (Graveyard) Bhavnagar Dispute passing a formal order vacating the stay order granted in favour of the petitioners as per Art. 226(3) of the Indian Constitution."
18. Mr. A.S. Asthavadi, therefore, submitted that the present Appeal deserves to be dismissed.
19. Mr. M.T.M. Hakim, learned counsel appearing for the Trust however supported the arguments made by Mr.Mihir Thakore, learned Senior Counsel for the Tenants - Appellants - Writ Petitioners and submitted that the Title and the possessory right of the Trust over the land in question for Kabristan (Graveyard) deserve to be protected and he also submitted that in an offshoot litigation, when the local Municipal Corporation wanted to construct a Road through the said land, the Trust opposed it by filing a Civil Suit No.762 of 1997, in which, however, the injunction was not granted and therefore, the said Public Road came to be constructed by the Municipality, through the said Kabristan land.
20. We have heard all the learned counsel and given our thoughtful consideration to the submissions and the material on record and the case laws cited at the bar.
21. In view of the complex and long historical litigating history Page 38 of 46 Downloaded on : Thu Jan 13 07:01:10 IST 2022 C/LPA/1055/2016 CAV JUDGMENT DT 8.3.21 PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar In Re: Kabristan (Graveyard) Bhavnagar Dispute of this case originating from 1895 and post Independence alleged conferment of their rights which, according to the State Government, stood violated by the Trust using the Kabristan (Graveyard) land for commercial purposes and in view of the pendency of Civil Suit No.13 of 1998 by the Trust itself for the same relief and various other large number of Civil Suits by Trust / Tenants both, as enumerated in the Table quoted above and which undoubtedly claim same or similar reliefs as claimed in their Writ Petition or Letters Patent Appeal, inter alia, assailing Collector's order dated 4.2.1990 and claiming declaratory reliefs and injunction, which is claimed here before us through the front of the Tenants of the Trust, we are not inclined upon to pronounce the merits of the rival contentions of the parties, lest it affects the trial of the Civil Suit No.13 of 1998 filed by the Trust and other related Civil Suits.
22. In the guise of a collateral attack to the eviction notices served upon the Trust and not on the Tenants at all, the Tenants have filed the present writ petition, therefore, we are of the firmly of the opinion that the Tenants were acting only as Spokespersons of the Trust itself. The Notices for eviction were not even served on any of such Tenants, but on the Trust only. Page 39 of 46 Downloaded on : Thu Jan 13 07:01:10 IST 2022 C/LPA/1055/2016 CAV JUDGMENT DT 8.3.21 PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar In Re: Kabristan (Graveyard) Bhavnagar Dispute The Tenants have wrongly assumed it to be a cause of action provided to them to invoke the writ jurisdiction of this Court even without replying the Notices or without raising any objection before the Competent Authority himself right from 1998 when the first such Notice was served upon the Trust by the Mamlatdar. It is only on this second round of the Notice served upon the Trust in 2002 that a group of the Tenants 42 in number, filed the present writ petition namely Special Civil Application No.12594 of 2002. Some of the Tenants including some of them being Plaintiffs and Petitioners in both kind of proceedings, cannot be permitted to abuse the process of law by multiplying the proceedings in different Courts and Forums. The other Tenants could have also very well joined as party or sought intervention in Civil Suit No.13 of 1998 and other suits also to protect their right of occupation besides the right of the Trust itself but some of them filed civil suits and some filed present writ petition but none of them chose to join the lis in the appropriate forum and appropriate civil proceedings instituted by the Trust itself viz. Civil Suit No.13 of 1998 and other Tenants.
23. Mr. Mihir Thakore, learned Senior Counsel chose to describe it as 'herd movement', seeking to explain that some of Page 40 of 46 Downloaded on : Thu Jan 13 07:01:10 IST 2022 C/LPA/1055/2016 CAV JUDGMENT DT 8.3.21 PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar In Re: Kabristan (Graveyard) Bhavnagar Dispute them could rush to this Court with a genuine apprehension and to protect their occupational rights. We are not very much impressed even by this apparently attractive but untenable argument. There was definitely a deliberate design to multiply the proceedings in so many Civil Suits and writ proceedings just to harass the State and its Authorities who were acting according to law. Filing of Civil Suits also at points of time by different persons of the same group is also an abuse of the process.
24. The scattering and spilling of the litigation in various forums for essentially the same cause and same or even similar relief claimed by the litigants has its serious darker grey area and is inherently an abusive user of the process of law in different Courts or Tribunals. The Judges presiding over the various Courts are human beings and presented with the different shades of material, evidence, documents and arguments, they may sway on one way or the other, resulting in conflicting orders passed by such different Courts and it takes years and lot of judicial time of all the courts and specially higher courts to then converge those conflicting orders into one clear pronouncement and a wrap up rival claims and then produce a uniform judgment or order covering all aspects of the matter.
Page 41 of 46 Downloaded on : Thu Jan 13 07:01:10 IST 2022 C/LPA/1055/2016 CAV JUDGMENT DT 8.3.21 PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar In Re: Kabristan (Graveyard) Bhavnagar Dispute
25. The litigation should normally flow from the lower rungs of judicial hierarchy upwards but in the recent past, we have seen the reverse down flow of such litigation and litigants normally invoke the extraordinary powers of higher constitutional courts first even though such litigation should have been initiated from the lowest platform. If we see on the criminal side, the High Courts are flooded with writ petitions and Section 482 CrP.C. Petitions even for directing the investigation police officials to lodge an FIR in the matter and investigate fairly into the case and likewise on civil sides what could be a simple suit for declaration and injunction is converted into a writ petition seeking mandamus directions and declaratory reliefs without relevant evidence proved in accordance with Evidence Act but on the Affidavit only filed in writ jurisdiction where false and vague Affidavits are filed galore. The powers of the constitutional courts being extraordinary and much superior are undeniably there, but they have to be invoked sparingly and in selected few cases and not as an ordinary remedy sought in all such type of cases. This is what results in 'docket explosion' which we all struggle to clear and delay in that process is bound to happen. Page 42 of 46 Downloaded on : Thu Jan 13 07:01:10 IST 2022 C/LPA/1055/2016 CAV JUDGMENT DT 8.3.21 PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar In Re: Kabristan (Graveyard) Bhavnagar Dispute
26. The court management and case flow management of the cases should not only care for the consolidation and classification of the cases involving common points for rendering common judgments on cases involving common points, but the Courts should also be conscious to examine primarily and at a preliminary level, whether the extraordinary jurisdiction invoked by the Petitioners is appropriate or not and whether they can be relegated to an alternative remedy at the lower appropriate Forums, Courts or Tribunals or not.
27. It is well, nay, settled position of law that the writ jurisdiction can be invoked only against the final orders of the lower authorities, Courts or Tribunals and that too if an effective and alternative remedy is not available to the writ petitioners. The terminology of alternative remedy being efficacious or adequate is the area where the Courts have to take a pragmatic and conservative view instead of being too liberal with 'open door' policy.
28. In the present case before us, though we could embark upon the journey of interpreting the provisions of the Gujarat Land Revenue Code, 1879 which was earlier known as Bombay Land Revenue Code, 1879 and after birth of State of Gujarat and Page 43 of 46 Downloaded on : Thu Jan 13 07:01:10 IST 2022 C/LPA/1055/2016 CAV JUDGMENT DT 8.3.21 PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar In Re: Kabristan (Graveyard) Bhavnagar Dispute creation of separate High Court for the State of Gujarat in the year 1960, the same Code was made applicable to the State of Gujarat and interpretation of Sections 37, 38, 66 and 133 as canvassed before us could be given, but such an academic exercise would remain a hollow and academic exercise only unless the factual foundations are first established by the parties. The Civil Suit No.13 of 1998 and series of connected Civil Suits enumerated above being pending before the Civil Courts, we are of the opinion that till the lower courts are seized of the matter in hand, we should desist from expressing any opinion either on the issues of facts or even the questions of law, which are intertwined with the questions of facts.
29. The Tenants have also filed various separate suits as per the details given above and the best course would be to consolidate the trial of all the pending civil suits filed by the Trust or the Tenants and assign all of them to one Trial Court, so that all the issues involved in the matter are properly adjudicated based on the relevant admissible evidence. The Principal District Judge, Bhavnagar is accordingly requested to undertake this exercise.
30. Accordingly, while declining to interfere in the matter in any manner not only for the reasons of the civil suits being Page 44 of 46 Downloaded on : Thu Jan 13 07:01:10 IST 2022 C/LPA/1055/2016 CAV JUDGMENT DT 8.3.21 PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar In Re: Kabristan (Graveyard) Bhavnagar Dispute pending, but also because the parties have not apparently approached this Court with clean hands and there is a taint of suppression of material facts by them, multiple litigations for the same or similar reliefs, therefore, we are not inclined to interfere with the matter in any manner and we dispose of the present Intra Court Appeal by relegating the parties to the Trial Court at Bhavnagar below with a direction to the learned concerned District Judge, Bhavnagar to consolidate the trial of all such pending civil suits and assign the same to one Court for trial in accordance with law as expeditiously as possible. The parties who are not party in the array of Plaintiffs or Defendants before the trial Court in this matter, can also be permitted to joint the lis there.
31. With these observations and directions, the present Appeal is disposed of. Civil Application No.1 of 2016 is also disposed of. No costs.
(DR. VINEET KOTHARI, J) (GITA GOPI, J) After pronouncement of the CAV Judgment, Mr. Mihir Thakore, learned Senior Counsel and other counsel appearing for the Appellants submitted that since the Tenants are in possession Page 45 of 46 Downloaded on : Thu Jan 13 07:01:10 IST 2022 C/LPA/1055/2016 CAV JUDGMENT DT 8.3.21 PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar In Re: Kabristan (Graveyard) Bhavnagar Dispute of the shops in question for a long period and in one of the civil suits pending before the Civil Court, an status quo order has also been granted by the Trial Court, therefore, the status quo may be maintained for a period of six weeks subject to the liberty being given to the parties for applying for injunction before the learned Trial Court and leaving it free for the Trial Court to consider the same and pass appropriate orders after giving opportunity of hearing to the Defendants and State also.
The aforesaid prayer seems to be justified. Therefore, we direct that the status quo of the property in question shall be maintained by the parties for a period of six weeks from today and it will be open for the Trial Court to consider the applications filed by the parties and the Trial Court will be free to pass appropriate orders in accordance with law.
We may further direct that all the trials of all the civil suits relating to this property will remain in one Court or Forum and will not be segregated in any manner to avoid any conflict of the orders by the two or more Forums.
(DR. VINEET KOTHARI, J) (GITA GOPI, J) Bharat Page 46 of 46 Downloaded on : Thu Jan 13 07:01:10 IST 2022