District Board Allahabad v. Tahir Husain — 1957 DIGILAW 416 (ALL)

JUDGMENT Mootham, C.J. - This is a special appeal against an order of Mr. Justice Dayal allowing a petition filed u/Art. 226 of the Constitution and issuing a writ of mandamus. 2. A bazar is held in village Ajhwa pargana Kara, District Allahabad twice every week on Sundays and Wednesdays and all kinds of commodities are sold in that bazar. The zamindars of the village used to realise tahbazari dues from all persons who brought wares for sale in the bazar. The zamindari rights in the village and the bazar originally vested in one Syed Abdul Hasan who made a waqf of his rights in the year 1919 and became the first mutwalli of the waqf. After his death his son Mohammad Ibrahim Hasan became the mutwalli. In 1952 he filed a writ petitior.(Civil Miscellaneous Writ No. 433 of 1952) in this Court in which he alleged that as a result of the coming into force of the Zamindari Abolition and Land Reforms Act the State and the District Board of Allahabad were trying to interfere with his possession over the bazar and the realization of the dues from the shop-keepers who brought their things for sale there. He prayed for a writ of mandamus requiring the Respondents to the petition not to interfere with his rights. The writ petition was admitted and an interim injunction was issued restraining the Respondents to the petition from interfering with Mohammad Ibrahim Hasan's possession over the bazar and his realisation of the dues. After the filing of the writ petition Mohammad Ibrahim Hasan died on 18-12-1953. Syed Tahir Husain the present Respondent No. applied to be allowed to continue the petition as heir and legal represeraative of Mohammad Ibrahim Hasan on the ground that he had succeeded to his rights and had become the mutwalli of the waqf in place of the deceased. He was, however, directed by an order dated 13th August 1954 to file a fresh writ petition and the writ petition filed by Mohammad Ibrahim Hasain was declared to have abated. The Respondent No. I then filed the writ petition out of which the present appeal has arisen. In that petition he impleaded the State as Respondent No. 1. the Collector of Allahabad, as Respondent No. 2, the District Board of Allahabad as Respondent No. 3 and three persons Jawahar Lal, Niranjan Lal and Dwarka Prasad as Respondents Nos. The Respondent No. I then filed the writ petition out of which the present appeal has arisen. In that petition he impleaded the State as Respondent No. 1. the Collector of Allahabad, as Respondent No. 2, the District Board of Allahabad as Respondent No. 3 and three persons Jawahar Lal, Niranjan Lal and Dwarka Prasad as Respondents Nos. 4, 5 and 6. He alleged in this petition that in accordance with the waqf deed he had become the mutwalli of the waqf after the death of Mohammad Ibrahim Hasan, that the bazar was held on certain plots of village Ajhwa mentioned in the petition which formed the sir, Khudkasht and groves of the waqf of which he was the mutwalli, that he and his predecessors had continned in actual physical possession of the bazar, trees, buildings, chabutras etc. for the last eighteen years and that he had been realising does from the shop-keepers since time immemorial. He further alleged that after the coming into force of the ZA and LR Act the Collector of Allahabad, Respondent No. 2, and the District Board of the district, Respondent No. 3, wanted to dispossess, him from the bazar and to take possession of it and that the District Board had auctioned the right to realise the bazar dues in favour of Respondents Nos. 4, 5 and 6. He said that he was entitled to continue in possession of the bazar and that the acts of the Respondents amounted to an infringement of his fundamental rights. He, therefore, claimed "a writ of mandamus, order, direction or a writ of any suitable nature restraining their subordinates, agents and employees and licensees from making collections and realising the dues of the market known as Naya Nazirganj, village Ajhuwa pargana Kara district Allahabad and from interfering with the possession of the applicant over the aforesaid market, its management and realization of dues or grant such further and other relief as it may deem fit." An affidavit was filed in support of the petition. All the Respondents were duly served with notices in respect of the petition, but none of them appeared at the time of hearing to oppose it. No counter affidavit was filed contesting the allegations that had been made in the affidavit filed in support of the petition. All the Respondents were duly served with notices in respect of the petition, but none of them appeared at the time of hearing to oppose it. No counter affidavit was filed contesting the allegations that had been made in the affidavit filed in support of the petition. The learned Judge who was hearing the petition therefore accepted the case put forward in it and ordered on 28-3-1955 that a writ of mandamus be issued as desired. 3. Only one of the Respondents to the petition viz. the District Board of Allahabad, has now come up in appeal. The original Petitioner has been impleaded as Respondent No. 1 to this appeal and the other Respondents to the petition have been impleaded as proforma Respondents. In the memorandum of appeal as it was originally filed only three grounds were put forward. It was urged on behalf of the Appellant that the learned Judge was not justified in granting the petition and issuing the writ of mandamus because the Petitioner had no subsisting right to maintain the petition, because the questions raised were questions of fact which could be decided only in a regular suit, and because the earlier petition of Mohammad Ibrahim Hasan having been dismissed a fresh petition was not maintainable. Subsequently the Appellant was allowed to amend his petition by adding the additional grounds that on the materials before the learned Judge no writ of mandamus could or should have issued, that the Petitioner was guilty of suppressing material facts, that the affidavit filed in support of the petition had not been properly sworn, that the necessary evidence had not been produced and that as the writ petition had been wrongly and prematurely listed for hearing the Appellant was entitled to have an opportunity to contest it on merits. 4. The other Respondents submitted to the decision of the writ petition as they themselves did not prefer any appeal against it. They were however represented by counsel in this appeal and lent their support to the case of the Appellant. 5. The grievance about the writ petition being wrongly and prematurely listed for hearing appears to be entirely unfounded. The petition was admitted and notice was ordered to be issued in respect of it on 18-10-1953. Notices were issued fixing 21-3-1954 as the date of the hearing of the petition. 5. The grievance about the writ petition being wrongly and prematurely listed for hearing appears to be entirely unfounded. The petition was admitted and notice was ordered to be issued in respect of it on 18-10-1953. Notices were issued fixing 21-3-1954 as the date of the hearing of the petition. The notices were duly served on the present Appellant and the Respondents Nos. 2, 3 and 4 to the present appeal. The notices meant for Respondents Nos. 5 and 6 were returned unserved. No appearance was put in on behalf of the Appellant or Respondents Nos. 2, 3 and 4 on the date fixed. Notices were ordered to be issued again to the Respondents Nos. 5 and 6 fixing 15-3-1955 as the date (or hearing. These notices were personally served on those Respondents but on the date fixed they too did not appear. The notices having been served on all the Respondents the writ petition became ready for hearing and was listed for hearing on 23-3 1955. On that date the petition was allowed. If the Appellant or Respondents Nos. 2 to 6 did not appear to contest the petition and allowed it to be heard in their absence they have only themselves to blame and cannot be allowed to say that the petition was taken up for hearing prematurely. The only explanation advanced on behalf of the Appellant for the omission to appear on the date of hearing is that the Appellant somehow got the impression that Respondents Nos. 2 and 3 would contest the petition and that Respondents Nos. 2 and 3 had the idea that the petition would be contested by the Appellant. This attempt to shift the responsibility between themselves cannot however be considered to be sufficient cause for non appearance and cannot entitle the Appellant to say that the writ petition must be re-heard. There is apparently no reason why Respondent No 1 should suffer for the acts and omissions of the other parties. 6. The contention that the writ petition should not have been entertained because there were controversial questions of fact which could not be decided in summary proceedings on the basis of affidavits and should have been left to be decided in a regular suit also appears to be of no force. The case put forward on behalf of the Petitioner in the petition was left uncontested. The case put forward on behalf of the Petitioner in the petition was left uncontested. The facts alleged in the affidavit filed in support of the petition were not controverted. No counter affidavit was filed. There was therefore nothing before the learned Judge on the basis of which he could hold that there was any serious dispute about the facts which could justify rejecting the version put forward on behalf of the Petitioner. The affidavit of the Petitioner having been left unchallenged the learned judge could also not require the Petitioner to produce any further evidence in support of his allegations nor could he refuse to accept his case on the ground that copies of the village papers or some other relevant evidence had not been produced. There was therefore no question of suppressing material facts or relevant evidence. 7. It must be conceded that the verification of the affidavit that was filed in support of the petition left much to be desired. Paras 1, 3 and 6 to 19 of the affidavit were verified on the basis of personal knowledge. In respect of paras. 2, 4 and 5 however it was stated that they were true in part to the personal knowledge of the deponent and the rest of the contents of those paras were true to perusal of records. The portions true to personal knowledge and the portions true to perusal of records were not however separately specified. On account of this defect in verification paras 2, 4 and 5 were liable to be excluded from consideration. Paras. 2 and 4 recited the previous history of the waqf which included the bazar in dispute and the appointment of its various mutwallis. Para 5 contained the survey numbers of the plots on which the bazar is held. These paras were thus of a more or less formal nature. The more material paras were those which had been sworn on the basis of personal knowledge. These paras included paras- 6, 8, 9 and 18, in which it had been definitely stated: 6. That out of the said plots the plots Nos. 1088, 1130 A and 1130 B are the Sir and Khudkasht of the applicant's ancestors and the rest of the plots were their groves. There are still a very large number of trees in the groves. 8. That out of the said plots the plots Nos. 1088, 1130 A and 1130 B are the Sir and Khudkasht of the applicant's ancestors and the rest of the plots were their groves. There are still a very large number of trees in the groves. 8. That the applicant's predecessors had constructed houses, chabutras, five wells and godowns in the said area scattered upon it. There are also mahuwa mango, jamun, and neem trees in the said bazar. The trees were planted by the ancestors of the applicant. 9. That the applicant and his predecessors have continued in actual physical possession of the said Bazar, trees, buildings and chabutras etc., standing thereon for the last nearly 80 years exclusively. 18. That the applicant is entitled to continue possession of the said bazar and manage the same as mutwalli according to the waqf deed. 8. These paragraphs had to be read in the light of the allegations made in the petition in support of which the affidavit containing these paragraphs had been filed. If so read even without the aid of paras Nos. 2, 4 and 5, they were sufficient to establish the Petitioner's right to continue in exclusive possession of the bazar in dispute without interference on behalf of the Respondents to the petition. In para 11 of the affidavit it was sated that the Appellant and the other Respondents were wanting to seize the bazar after the coming into force of the ZA and LR Act, and para 16 clearly stated that the rights of the Petitioner were not affected by the enforcement of that Act. It is therefore clear that the petition supported by the paras of the accompanying affidavit which were verified on the basis of personal knowledge made out a case for the issue of a writ of mandamus because it showed that the Respondents were going to interfere with the Petitioner's right in the property without justification. No importance could in the circumstances be attached to the irregular verification of three of the paras and the petitition could not be rejected on that basis. 9. It was urged that the previous petition of the predecessor in interest of the present Respondent No. 1 having been declared abated the present petition was not maintainable. This plea too, appears to be untenable. 9. It was urged that the previous petition of the predecessor in interest of the present Respondent No. 1 having been declared abated the present petition was not maintainable. This plea too, appears to be untenable. The previous petition had not been dismissed on merits and the Petitioner's application to be brought on the record in place of the deceased Mohammad Ibrahim Hasan had been rejected on the ground that he had a right to file a fresh petition. 10. There is no doubt that a writ of mandamus is not a writ of course. In fact every relief which can be granted u/Art. 226 of the Constitution is a discretionary relief. It was urged on behalf of the Appellant that if the previous history of the controversy had been taken into consideration and the relevant provisions of the ZA and LR Act had been correctly interpreted the Respondent No. 1 would have been found to have no subsisting right in the bazar in dispute. The learned Judge, it is urged should therefore have refused to exercise his discretion in his favour and the Appellant is entitled to ask this Court to do what the learned Judge ought to have done. We have given anxious consideration to this contention. Before the learned Judge there was only the uncontroverted case of the Petitioner that he has been and was entitled to remain in exclusive possession of the bazar and that the Respondents to the petition intended to take the law into their own hands and wrongfully to interfere with his rights without any justification. There was no reason for doubting the veracity of the facts alleged. If those facts were correct (and the learned Judge was in the circustances bound to assume this to be so the Petitioner was obviously entitled to have his rights in the bazar protected from unjustified interference. If therefore the learned Judge by a writ of mandamus restrained the Respondents from such interference it is difficult to see how it can be said that he exercised his discretion improperly. Because of the Appellant's own default the learned Judge did not have before him the Appellant's version of the facts or the interpretation of the relevant provisions of the Z A and LR Act which the Appellant wanted to put forward. On such materials as were actually on the record the petition was bound to succeed. Because of the Appellant's own default the learned Judge did not have before him the Appellant's version of the facts or the interpretation of the relevant provisions of the Z A and LR Act which the Appellant wanted to put forward. On such materials as were actually on the record the petition was bound to succeed. The appeal too has to be decided on the same materials and the result cannot be expected to be different. We have therefore no hesitation in saying that on the facts as were placed before him the view which the learned Judge took was quite justified. It is possible that if in proper proceedings the Appellant or the Respondents other than the the first succeed in establishing (we should not be taken to be expressing any opinion about their being entitled to do so) that the right of the Respondent No. 1 in the bazar had come to an end as a result of the coming into force of the ZA and LR Act and that he had on this account become liable to be dispossessed the matter may assume an entirely different aspect. Whether the Appellant or the Respondents (other than the first Respondent) can, notwithstanding the mandamus, obtain possession of the property in dispute by proceedings in another court is a matter upon which we express no opinion. 11. There is thus no force in any of the grounds that have been urged on behalf of the Appellant and the appeal mnst fail. It is accordingly dismissed with costs.