Raja Khan Vs U.P.
Sunni Central Waqf Board & ANR
O R D E R
Heard learned counsel
for the petitioner. "Something is rotten in the State of Denmark",
said Shakespeare in Hamlet, and it can similarly be said that something is
rotten in the Allahabad High Court, as this case illustrates. This petition has
been filed against the impugned judgment passed by a division Bench of the High
Court of Allahabad dated 5.8.2010 in Special Appeal No. 973 of 2010.By that
judgment the ex-parte interim orders of the Single Judge of the High Court
dated 11.6.2010 and 18.6.2010 passed in Writ Petition No. 34595/2010 have been
set aside. :
1.
1:
The brief facts of the case are that there is a Dargahknown as `Dargah Hazrat
Syed Salar Masood Ghazi R.A.' in district Bahraich, U.P. which is managed by
the Committee of Management of Waqf no.19. The petitioner claims to be the
proprietor of circuses e.g. Great Gemini Circus, Apollo Circus, Raj Mahal Circus
and Asiad Circus, and also runs a Jhoola (cradle) for entertaining the public
at large. The petitioner does touring and runs the aforesaid circuses and jhoola
in` Melas' and other places of public gathering. In the aforesaid dargah a Mela
is held in the month of Jeth, known as `Jeth Mela', Bahraich for a period of 40days.
It is alleged by the petitioner that in the past several years the Waqf has
been allotting plot nos.1760 to1770 and 1826 to 1834 belonging to it on lease
to the petitioner for holding the Jeth Mela. However, in 2010 the Waqf refused
to allot the said land for Jeth Mela to the petitioner. Hence the petitioner
twice filed writ petitions in the Lucknow Bench of the Allahabad High Court
which were dismissed. It may be mentioned that Bahraich is a district in
erstwhile Avadh, which is under the jurisdiction of the Lucknow Bench of the
High Court. :
2.
2:
The petitioner then filed a suit in district Hamirpur being Suit no.54/70/10 of
2010 and when an objection was raised about territorial jurisdiction he filed the
writ petition being Writ Petition no.34595 of 2010 in the Allahabad Bench of
the High Court on which the ex-parteinterim orders dated 11.6.2010 and
18.6.2010 were passed by the Single Judge of the Allahabad Bench of the High
Court. The order of the single Judge dated 11.6.2010 reads as follows : "Issue
notice to respondent Nos. 2, 3 and 4. The said respondents are directed to file
counter affidavit within 6 weeks. Rejoinder affidavit, if any, may be filed within
two weeks thereafter. List thereafter. The grievance of the petitioner is that
for the last several years the petitioner is allotted land for installing Circus,
Jhoola, Merry go round, swing for amusement area for the children and visitors
of Mela in the premises of Dargah Sharif during the annual Urs in the month of
Jeth (May and June). Accordingly the respondent Nos. 2, 3 and 4 are directed to
allot land in the Mela at waqf No. 19, Dargah Sharif, Bahraich over Plot Nos.
1760 to 1770 and 1826 to 1884, details of which have been given in the writ petition,
to the petitioner for the purpose of running Circus, Jhoola, Merry go round
swing etc. If the petitioner pays required rent lease, the possession of the
allocated land shall be handed over the petitioner within 3 days. Order Date:-
11.06.2010". :
3.
The
order dated 18.6.2010 reads as follows :
"Heard learned
counsel for the petitioner and the learned standing counsel. Learned counsel
for the petitioner has raised the grievance that despite earlier order of this
Court dated 11.6.2010, the petitioner has not been allotted land in the Mela
area. The very purpose of filing the writ petition would be frustrated if the
petitioner is not allotted the land for running circus/Jhula in the Meal area. The
District Magistrate and the Superintendent of Police, Bahraich are directed to
pass appropriate order in compliance of the order of this court dated
11.6.2010, since the petitioner has not been allotted land in the Mela area. The
very purpose of filing the writ petition would be frustrated if the petitioner
is not allotted the land for running circus/Jhula in the Mela area. The District
Magistrate and the superintendent of Police, Bahraich are directed to pass
appropriate order in compliance of the order of this court dated 11.6.2010 and
allot appropriate plot to the petitioner and file affidavit of compliance. Put
up this case on 16.7.2010 before appropriate bench for hearing. The concerned officers
or any other senior officer authorized by them shall file affidavit of
compliance by 28.6.2010. Order Date:- 18.6.2010". The above orders are
shocking to say the least. We are of the opinion that the above two ex-parte interim
orders of the Single Judge of the Allahabad High Court were clearly passed on extraneous
considerations.
1.
2.
3.
4.
This
is for the following reasons : (1)The property in question is in the district
of Bahraich which is within the territorial jurisdiction of the Lucknow Bench of
the Allahabad High Court. Hence, the writ petition could not have been validly
filed or entertained in the Allahabad Bench of the High Court in view of the decision
of this court in Nasiruddin vs. State Transport Appellate Tribunal AIR 1976 SC
331.(2)The writ petition was not maintainable because ordinarily no writ
petition lies against a private body.(3)By the ex-parte order dated 11.6.2010
the writ petition has been practically allowed since by that ex-parte order the
respondents 2, 3,& 4 (U.P. Sunni Central Waqf Board District Magistrate,
Bahraich and Committee of Management, Waqf No. 19, Dargah Sharif, Bahraich)
have been directed to allot the land in the Mela of the aforesaid Waqf at plot Nos.
1760 to 1770 and 1826 to 1884 to the petitioner for the purpose of running circus,
Jhoola, Merry-go-round etc. and possession of the allocated land was directed
to be handed over within three days. Subsequently, on 18.6.2010,the same single
Judge has passed an order directing the district Magistrate and SP, Bahraich to
take appropriate action for compliance of the earlier order. It is well settled
that by an interim order the final relief should not be granted, vide U.P. Junior
Doctors Action Committee vs. Dr. B. Sheetal Nandwani, AIR 1992 SC671 (para 8), State
of U.P. vs. Ram Sukhi Devi, JT2004(8) SC 264 (para6), etc.(4)
5.
The
petitioner had earlier filed a writ petition being writ petition No. 4720(M/B) of
2010 before the Lucknow Bench of the High Court which was dismissed on
19.5.2010with liberty to approach the district Magistrate by making a representation.
The petitioner made a representation which was decided by the District
Magistrate on 21.5.2010with the direction to the Committee of Management of the
Waqf to reconsider the petitioner's claim for allotment of land. The petitioner
then applied to the Committee of the Management for grant of a lease and
simultaneously filed another writ petition being writ petition No. 5245(M/B) of2010
before the Lucknow Bench challenging the order of the District Magistrate.
6.
This
writ petition was dismissed on28.5.2010 by the following order of the Division
Bench of the Lucknow Bench of the Allahabad High Court : "Court No. -Case:-
MISC. BENCH No. - 5245 of 2010 Petitioner :- Raza Khan S/O Fateh Khan Respondent
:- District Magistrate / Additional Waqf Commissioner, Bahraich Petitioner
Counsel:- M. A. Khan Respondent Counsel:- C. S. C., M. Sayeed, U.K. SrivastavaHon'ble
Pradeep Kant, J.Hon'ble Ritu Raj Awasthi, J. After hearing the argument at
length, we are satisfied that this second writ petition for the same relief is
not maintainable, as earlier, the writ petition filed by the petitioners for
the same relief, has been dismissed as withdrawn vide order dated 19.5.2010. Sri
Umesh Kumar Srivastava appearing for the Committee says that in pursuance of
the directives issued by the District Magistrate in his order dated 21.05.2010,
a fresh decision has already been taken and it has been sent to the petitioner
through registered post. Mohd. Arif Khan, learned Senior Advocate, appearing
for the petitioner says that no such decision has yet been communicated. Copy
of the said decision has been handed over to Sri Mohd. Arif Khan. When this
Court has refused to entertain the writ petition filed earlier for the same relief
and though liberty to the petitioner to approach the District Magistrate or any
other forum, as may be provided under law being even, it does not mean that the
second writ petition seeking same relief will be maintainable after the orders
passed by the authority concerned, but it would be open to the parties to seek
their remedy, elsewhere, as may be provided under law. :
7.
The
dispute like this nature, since cannot be adjudicated in writ jurisdiction, we did
not entertain the earlier petition and for the same reason, the present
petition is also not maintainable. Mohd. Arif Khan, lastly submitted that a direction
be issued to the Chairman for deciding the application moved under Section 70
of the Act. In response, Sri Umesh Kumar Srivastava, argued that Section 70 is
not attracted in the matter, nor such an application is entertainable. We do
not intend to enter into this controversy, and leave it open to the petitioner,
to pursue his application with the above observation, the writ petition is dismissed.
Order Date: 28.5.2010" The petitioner then filed a Civil Suit being Suit
No.54/70/10 of 2010 titled `Raza Khan vs. Managing Committee, Waqf No. 19, Waqf
Dargah etc. before the Civil Judge(Senior Division), Hamirpur. It may be mentioned
that Hamirpur lies within the territorial jurisdiction of the Allahabad Bench of
the High Court and not the Lucknow bench, whereas the property in question is situate
at Bahraich which is under the jurisdiction of the Lucknow Bench. On the suit being
presented, the Munsarim made are port that the suit was not cognizable at
Hamirpur for lack of territorial jurisdiction. The petitioner took time to file
a reply/objection against the said report. Instead of filing a reply, he filed a
writ petition in the Allahabad bench of the High Court being writ petition No.34595
of 2010 on which the orders dated 11.6.2010 and18.6.2010 have been passed. In
our opinion, the Division Bench of the High Court has rightly set aside the
interim orders of the Single Judge dated 11.6.2010 and 18.6.2010 as these
interim orders were clearly passed on extraneous considerations. The faith of
the common man in the country is shaken to the core by such shocking and
outrageous orders such as the kind which have been passed by the Single Judge. We
are sorry to say but a lot of complaints are coming against certain Judges of
the Allahabad High Court relating to their integrity. Some Judges have their
kith and in practicing in the same Court, and within a few years of starting
practice the sons or relations of the Judge become multi-millionaires, have huge
bank balances, luxurious cars, huge houses and are enjoying a luxurious life. This
is a far cry from the days when the sons and other relatives of Judges could derive
no benefit from their relationship and had to struggle at the bar like any
other lawyer.
8.
We
do not mean to say that all lawyers who have close relations as Judges of the
High Court are misusing that relationship. Some are scrupulously taking care
that no one should lift a finger on this account. However, others are
shamelessly taking advantage of this relationship. There are other serious
complaints also against some Judges of the High Court. The Allahabad High Court
really needs some housecleaning (both Allahabad and Lucknow Bench), and we
request Hon'ble the Chief Justice of the High Court to do the needful, even if he
has to take some strong measures including recommending transfers of the incorrigibles.
We entirely agree with the view taken by the Learned Division Bench in the
impugned judgment. In view of the foregoing, we find no merit in this petition which
is accordingly dismissed. : Let a copy of this order be sent to the Registrar Generals/Registrars
of all High Courts for being placed before Hon'ble the Chief Justice of the
respective High Courts.
...................J.
(Markandey Katju)
..................J.
(Gyan Sudha Misra)
New
Delhi;
26
November, 2010.
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