Raja Khan Vs. U.P. Sunni Central Waqf Board & ANR (26/11/2010)

SUPREME COURT OF INDIAIndia Bharat Varsha (Jambu Dvipa) is the name of this land mass. The people of this land are Sanatan Dharmin and they always defeated invaders. Indra (10000 yrs) was the oldest deified King of this land. Manu's jurisprudence enlitened this land. Vedas have been the civilizational literature of this land. Guiding principles of this land are : सत्यं वद । धर्मं चर । स्वाध्यायान्मा प्रमदः । Read more

Raja Khan Vs. U.P. Sunni Central Waqf Board & ANR

CIVIL APPELLATE JURISDICTIONJurisdiction Authority by which courts receive and decide cases. Limited Jurisdiction: the authority over only particular types of cases, or cases under a prescribed amount in controversy, or seeking only certain types of relief, the District Court is a court of limited jurisdiction. Original Jurisdiction: Jurisdiction of the first court to hear a case.

SPECIAL LEAVE PETITION(CIVIL) NO. 31797 of 2010

DATE: 26/11/2010

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 judgmentJudgment The statement given by the Judge on the grounds of a decree or order - CPC 2(9). It contains a concise statement of the case, points for determination, the decision thereon, and the reasons for such decision - Order 20 Rule 4(2).  Section 354 of CrPC requires that every judgment shall contain points for determination, the decision thereon and the reasons for the decision. Indian Supreme Court Decisions > Law declared by Supreme Court to be binding on all courts (Art 141 Indian Constitution) Civil and judicial authorities to act in aid of the Supreme Court (Art 144) Supreme Court Network On Judiciary – Portal > Denning: “Judges do not speak, as do actors, to please. They do not speak, as do advocates, to persuade. They do not speak, as do historians, to recount the past. They speak to give Judgment. And in their judgments, you will find passages, which are worthy to rank with the greatest literature….” Law Points on Judgment Writing > The judge must write to provide an easy-to-understand analysis of the issues of law and fact which arise for decision. Judgments are primarily meant for those whose cases are decided by judges (State Bank of India and Another Vs Ajay Kumar Sood SC 2022) 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. The brief facts of the case are that there is a Dargah known 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 40 days. It is alleged by the petitioner that in the past several years the Waqf has been allotting plot nos.1760 to 1770 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. 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-parte-interim 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 affidavitAffidavit An ex parte statement in writing made under oath before a notary public or other officer authorized to administer oaths, about facts which the affiant either knows of his own personal knowledge or is aware of to the best of his knowledge. 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 opinionOpinion A judge's written explanation of a decision of the court. In an appeal, multiple opinions may be written. The court’s ruling comes from a majority of judges and forms the majority opinion. A dissenting opinion disagrees with the majority because of the reasoning and/or the principles of law on which the decision is based. A concurring opinion agrees with the end result of the court but offers further comment possibly because they disagree with how the court reached its conclusion. that the above two ex-parte interim orders of the Single Judge of the Allahabad High Court were clearly passed on extraneous considerations.

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 SC 671 (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 19.5.2010 with liberty to approach the district Magistrate by making a representation. The petitioner made a representation which was decided by the District Magistrate on 21.5.2010 with the direction to the Committee of Management of the Waqf to reconsider the petitioner’s claimA Claim A claim is “factually unsustainable” where it could be said with confidence before trial that the factual basis for the claim is entirely without substance, which can be the case if it were clear beyond question that the facts pleaded are contradicted by all the documents or other material on which it is based. 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) of 2010 before the Lucknow Bench challenging the order of the District Magistrate.

6. This writ petition was dismissed on 28.5.2010 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. Srivastava Hon’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 timeTime Where any expression of it occurs in any Rules, or any judgment, order or direction, and whenever the doing or not doing of anything at a certain time of the day or night or during a certain part of the day or night has an effect in law, that time is, unless it is otherwise specifically stated, held to be standard time as used in a particular country or state. (In Physics, time and Space never exist actually-“quantum entanglement”) 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 and 18.6.2010 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 faithFaith  πίστει. 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.