C/SCA/14215/2024 ORDER DATED: 03/10/2024
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14215 of 2024
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AULIYA-E-DEEN COMMITTEE, REG. NO B-706/JUNAGADH
Versus
STATE OF GUJARAT THROUGH PRINCIPAL SECRETARY & ORS.
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Appearance:
MR MIHIR THAKORE, SR. COUNSEL WITH MR MTM HAKIM & MR
SAQUIB S ANSARI(7152) for the Petitioner(s) No. 1
MR G. H. VIRK, GOVERNMENT PLEADER/PP ASSISTED BY MS
DHARITRI PANCHOLI, AGP & MR SIMRANJITSINGH H. VIRK for the
Respondent(s) No. 1,2,3,4,5
MR MANISH S SHAH(5859) for the Respondent(s) No. 7
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CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
Date : 03/10/2024
ORAL ORDER
1. Mr Mihir Thakore, learned senior counsel appearing with Mr
MTM Hakim and Mr Saquib S. Ansari, learned advocates for the
petitioner submitted that notices were issued on 12.09.2024 under
the provisions of Section 211 of the Gujarat Land Revenue Code,
1879 (hereinafter referred to as “the Code”) requiring the recipient
to show cause as to why the name should not be deleted from the
property card. The hearing was kept on 19.09.2024, when a request
was made for an adjournment and the matter came to be adjourned
to 27.09.2024. Another request was made; however, there was no
response provided and without there being any hearing, that the
order appears to have been passed. It is required to be noted that
till the filing of the writ petition, there was no order passed
inasmuch as, as per the status available, the matter before the
Collector was shown to be pending. It is submitted that such a
course adopted by the respondent, was not in a right earnest.
2. While inviting attention to the order dated 17.09.2024 passed
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by the Hon’ble Supreme Court, it is submitted that there is direction
not to demolish any structure across the country without seeking
the leave of the Court, carving out an exception but the fact
remains that there shall not be any demolition. It is submitted that
despite which, steps have been taken and the structures have been
removed. While inviting attention to the photographs (pages 33 to
83), it is submitted that the structures were standing till the night of
27.09.2024 and it is thereafter that they have been removed on
Friday and Saturday. Such undue haste shown by the respondent
authorities exhibits high handedness. It is submitted that the
respondent authorities have maliciously conducted illegal demolition
of the religious places of the Muslims community, dargahs, graves
and residential premises.
3. It is next submitted that in the year 1903, a resolution dated
28.03.1903 (page 100), had been passed and as per the sketch
available, the land has been allotted to the Muslims. Thereafter, in
the property card, besides the name of the State Government, the
names of the occupants are mentioned. It is submitted that the
petitioner is a registered Waqf and has all the rights to manage the
properties and structures and it has been doing so. It is submitted
that the mutawallis of the petitioner at the relevant point of time,
had preferred a writ petition which came to be disposed of with a
direction to conduct the proceedings under sub-section (2) of
Section 37 of the Code. Case came to be registered before the
Deputy Collector who, by passing an order declared the land as of
the ownership of the State Government. It is submitted that since
the petitioner was aggrieved, that it preferred an appeal before the
Collector who has passed an order of maintenance of status quo qua
the land bearing revenue survey nos.1851 and 1852 permitting the
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use of land for burial and for holding annual fairs till the completion
of the inquiry.
4. It is further submitted that though it is sought to be argued
that notices dated 05.09.2024 have been issued but the same were
never served upon the petitioner, considering the fact that the same
have been issued in the name of different parties and not the
petitioner. It is submitted that reliance is also placed on the Panch
Rojkam dated 05.09.2024; however, it is not clear as to whether the
notices have been pasted on the structures, which were sought to
be removed. It is next submitted that though it is claimed that
notice under Section 202 of the Code has been issued; however,
condition precedent for issuance of the notice, is the adjudication. In
the present case, no adjudication has taken place and straightaway,
the notices have been issued which would be against the principle
laid down by this Court in the case of Government of Gujarat vs.
Amraji Motiji Thakor reported in 1991 (2) GLH 606.
5. Mr Mihir Thakore, learned senior counsel further submitted
that it is the petitioner who all through out has been litigating,
namely, filing of the suit in the year 2015 and thereafter, before the
Tribunal in the year 2020. Even the writ petition was filed before this
Court in past in the year 1983 which was at the behest of the
petitioner. Even contempt proceedings were initiated by the
petitioner, followed by writ petition being Special Civil Application
no.13449 of 2024. Therefore, it is not in dispute that the petitioner
has been managing the affairs and taking care of the structures in
question. It is therefore urged that status quo as prayed for be
granted.
6. Mr G. H. Virk, learned Government Pleader assisted by Ms
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Dharitri Pancholi, learned Assistant Government Pleader for the
respondent, submitted that the captioned writ petition, is the fifth
proceeding initiated by the petitioner. It is submitted that there was
stay granted by the learned Senior Civil Judge in the year 2016;
however, in the year 2020, upon application being filed seeking
return of the plaint, that the plaint was returned by passing an order
dated 18.01.2020. It is next submitted that in past, notices were
issued i.e. on 07.10.2023 requiring the removal of the
encroachment and the petitioner, has taken out the contempt
proceedings before this Court being Miscellaneous Civil Application
(for contempt) no.84 of 2024 on the ground of breach of the order
dated 19.01.2016 passed below Exhibit 5 in Regular Civil Suit no.51
of 2015. It is submitted that it is categorically recorded that when
the notices were issued, there was no stay in currency. The Division
Bench, considered the provisions of Order VII Rule 10 of the Code of
Civil Procedure, 1908 and in paragraph 20, it has been recorded that
“after the order was passed on 18.01.2020, there was no injunction
which was operational as on 09.10.2023 when the respondent took
action.” It is submitted that the said order passed by the Division
Bench has not been challenged by the petitioner.
7. It is further submitted that after the plaint was returned
before the Waqf Tribunal, no steps have been taken by the
petitioner for the purpose of grant of stay and as of today also,
there is no restraint order in currency and the matter, is now posted
for hearing before the Tribunal on 11.10.2024. It is submitted that
even after the disposal of the contempt petition, writ petition being
Special Civil Application no.13449 of 2024 has been filed and this
Court, has neither issued any notice nor any stay has been granted
and even the petitioner has not put any efforts for hearing of the
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said writ petition.
8. It is submitted that apart from this, the proceedings were
initiated pursuant to the order passed by this Court and in the
inquiry, the Deputy Collector has clearly held land to be of the
ownership of the State Government which is a subject matter of
appeal before the Collector; however, there is no stay granted. In
the penultimate paragraph of the order, it is recorded that the land
has been granted to the Somnath Trust on the lease for 999 years.
The Collector, has only stated that the surrounding land shall not be
used for any other purpose other than the fair and the appeal is
pending.
9. Therefore, in all the proceedings, there is no restraint order or
protection extended to the petitioner.
10. While referring to the reply affidavit, it is submitted that the
resolution was passed by the Revenue Department, of the
Saurashtra Government dated 03.11.1951 and as per item no.4, all
the Government waste land and other lands etc. as indicated
therein have been allotted to the Somnath Trust on lease for 999
years. It is submitted that necessary entry has also been posted in
the revenue record, namely, 1537 dated 28.12.1956 wherein, all the
survey numbers have been mentioned, namely, survey no.1849,
1850, 1851, 1907 which has now been given new survey no.1852. It
is further submitted that entry no.1538 dated 28.12.1956, clearly
records that the survey no.1852 admeasuring Acre 146 – 34
gunthas has been given to the Somnath Trust.
11. It is submitted that the voluminous record therefore, clearly
suggests that the land belongs to the State Government and the
same is not in dispute; which led to the issuance of the notice dated
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12.09.2024 requiring the petitioner to remain present. Matter was
thereafter adjourned on 19.09.2024 and thereafter, on 27.09.2024.
Reply was filed and as per the order, the reply is duly considered
and it is only thereafter, that the name of the respective occupants
have been directed to be deleted from the property card. It is
submitted that notices were issued on 05.09.2024 to the respective
occupants and Panch Rojkam has been drawn substantiating the
issuance of the notice and the notices have been pasted at the site
and therefore, it is incorrect to say that no notices have been
issued. It is submitted that the steps were taken initially in the
month of October 2023 and now.
12. Considered the submissions. Issue notice to the respondents
returnable on 24.10.2024.
13. On 30.09.2024, this Court, during the course of hearing
inquired from the learned counsel appearing for the petitioner and
the respondent about the status of the steps taken and it is
informed that the structures have been removed. Mr G. H. Virk,
learned Government Pleader submitted that the area is now
cordoned off as well. Also, considering the submissions, the request
of the status quo is not accepted for the reasons in brief narrated
herein below.
14. Notably, apropos the statement made in the writ petition
before this Court in the year 1983, inquiry was conducted under the
provisions of sub-section (2) of Section 37 of the Code and the
Deputy Collector, has passed an order dated 19.05.1987, declaring
the land to be of the State Government. Appeal was filed before the
Collector and the same is pending without any stay or protection to
the petitioner. Besides, in the year 2015, Regular Civil Suit no.51 of
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2015 was filed by the petitioner when, initially, there was a stay
granted; however, in the year 2020, application, inter alia, was filed
for return of the plaint, which was allowed by passing order dated
18.01.2020. The plaint, came to be returned with a liberty to
present it before the Waqf Tribunal and the proceedings are now
pending before it. It is claimed by the petitioner that the
proceedings continued, so also the stay which aspect is not in sync
with the record made available.
15. Pertinently, on 07.10.2023, the Mamlatdar & Executive
Magistrate, issued a notice, requiring the recipient to remove the
unauthorised encroachment, which was subject matter of the
contempt proceedings being Misc. Civil Application (For Contempt)
no.84 of 2024. Contention was raised by the applicant that in view
of the order dated 19.01.2016, the Collector could not have
interfered with the possession of the suit land by issuing the notices
dated 07.10.2023. The Division Bench after hearing the parties, has
held and observed that there is no order of injunction, which was
operational as on 09.10.2023 when the respondent took action.
Paragraphs 20, 24 to 28 are reproduced herein below:
“20. Hence, thereafter there is no order of injunction which was
operational on 09.10.2023, when the respondent took action,
impugned herein.
24. In case before the Apex Court, there was no bar of jurisdiction
and both the forums had jurisdiction which were operating in
independent spheres. Such is not the case here. There were no
parallel proceedings in the present case nor overlapping of
jurisdictions.
25. Moreover, while examining the status of order in contempt
jurisdiction, the scope of interpretation is further narrowed down to
examine as to whether the order continues to exist, remain
operational or it looses the efficacy.
26. In view of the aforesaid discussion, the Court is of the view that
once the order dated 18.01.2020 is passed below Exh.101 filed by
the applicant and the Civil Court below Exh.101 exercised power
under O-7, R-10, R-10A, order dated 19.01.2016 of the Civil Court
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will become non-existent and loose its efficacy and thereafter, it is
not open for even the Civil Judge to extend it or pass order to keep it
operational. In the facts of the case, it is an admitted position that
there is no similar order passed by the Waqf Tribunal.
27. This Court having held that the order dated 19.01.2016 is non-
existent and looses its efficacy, the action dated 09.10.2023 by the
respondent cannot be termed as in breach of the directions under
order dated 19.01.2016 or contemptuous.
28. Before parting, the Court deprecates the practice of the
applicant of not bringing most relevant fact of order dated
18.01.2020 below Exh.101 on the record on its own, but was pointed
out by the respondent. This act could be held to be deliberate
attracting strict remarks of this Court, however, as is requested by
learned advocate on record, presently the Court refrains from
making any further comments.”
16. Subsequent thereto, Special Civil Application no.13449 of
2024 has been filed before this Court, inter alia, praying for
quashing and setting aside the order dated 18.01.2020 passed
below application Exh.103 in Regular Civil Suit no.51 of 2015.
Direction is sought against the respondents; however, no order has
been passed in the said writ petition, either issuing the notice or
directing the maintenance of status quo. Therefore, there is no stay
order in operation in favour of the petitioner in any cognate
proceedings. For the grant of status quo, the petitioner has to
satisfy this Court about the prima facie case, balance of
convenience and irreparable loss. Neither in the memo of petition
nor during the course of arguments, the details of the structures
owned and used by the petitioner have been disclosed. The
petitioner has placed on record its PTR; however, in the column of
movable and immovable properties, the detail mentioned is ‘Nil’. In
the prima facie opinion of this Court, though the petitioner claims to
be the manager of the property; the PTR placed on the record of the
petition (page 174) does not indicate any property and this aspect
has been fairly conceded by Mr MTM Hakim, learned advocate for
the petitioner. Even otherwise, there is no clarity as to what are the
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properties the petitioner is managing.
17. Since the petitioner has come before this Court, challenging
the action of the respondent authorities, it needs to establish its
right when seeking interim relief. As the same has not been done,
except providing the general information of the structures, it will be
necessary for the petitioner to place on record the details of the
structures it was using, the area of such structures and the time
span of such use. Let the petitioner place on record the details of
the properties which according to the petitioner have been
removed.
18. On the other hand, this Court, is also mindful of the action on
the part of the State authorities and therefore, it would be
necessary to direct the respondent authorities also to place on
record the details of all the structures demolished, the area of the
structures, the time span of such use, geographical indication of the
structure, notices sent to the recipient and/or representatives etc.
The above-referred details, would be necessary for appreciating the
factual aspects, so as to pass any further orders to the parties
aggrieved.
19. Let the respective details be provided by the next date of
hearing i.e. on or before 24.10.2024.
20. Direct service is permitted.
(SANGEETA K. VISHEN,J)
RAVI P. PATEL
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