Research › Search › Judgment

Chhattisgarh High Court · body

2013 DIGILAW 225 (CHH)

NAND KISHOR SURJAN v. STATE OF M. P.

2013-08-05

SATISH K.AGNIHOTRI

body2013
ORDER 1. Both the petitions involve common facts and question of law, thus they are being disposed of by this common order. 2. W.P. No. 3298/2000 is filed by the Secretary of the Gayatri Shikshan Samiti, Rajnandgaon, and Vice President of the Patel Nagar Grih Nirman Sahkari Sanstha Maryadit, Rajnandgaon, against the State, Director, Assistant Director, Town and Country Planning, Secretary Local Self Government, Municipal Corporation, Rajnandgaon, Collector (Nazul), Rajnandgaon, Dawoodi Bohra Jamat Anjuman-E-Ezzi, Rajnandgaon, and the Presiding Officer of the State Wakf Tribunal, and one Private respondent viz. Ali Asgar. W.P. No. 648/2001 is filed by the Managing Trustee, Gayatri Pariwar Trust, President, Patel Nagar Grih Nirman Sahkari Sanstha Maryadit, and the Principal, Jamuna Lalita Manik Gayatri Vidyapeeth, Rajnandgaon, against the respondents, as arrayed in other petition. 3. In the beginning of the pleadings, (in W.P. No. 3298/2000), the petitioners clearly state that the petition is not against any particular order but for a direction to the respondents to clear the 80 feet road marked in saffron colour in the map (Annexure P/3), however, in the relief clause the petitioner seeks several directions, firstly, to quash the proceedings pending before the State Wakf Tribunal (for short, "the Tribunal") in case No. 18/2000 (Ali Asgar v. State of M.P. and others), secondly, to set aside Annexure P-14, i.e. the petition of the respondent No. 10 before the Tribunal, for grant of permanent injunction against interference with the construction of wall to protect Bohra Mosque Jamat Khana etc. and the interim order dated 28.04.2000 (Annexure P15) passed by the Tribunal wherein a temporary injunction against interference with the construction with the wall for safety of the graveyard, was granted. Thirdly, a direction to the respondent No. 1 to 7 to clear the notified 80' road from encroachment and also to construct the approach road from Power House to Patel Nagar and Gayatri Vidya Peeth. 4. In W.P. No.648/2001, the petitioner seeks quashing of the notice dated 23.03.2001 (Annexure Pill) issued by the Nazul Officer, Rajnandgaon, further, to quash the Nazul Case No. 37A/20(1) 97-98 pending before the Collector (Nazul) Rajnandgaon. The petitioners further seek a direction to the State authorities to clear the encroachments done by the Dawoodi Bohra Jamat Anjuman-E-Ezzi on 80' road joining Power House and the petitioner society. 5. The petitioners further seek a direction to the State authorities to clear the encroachments done by the Dawoodi Bohra Jamat Anjuman-E-Ezzi on 80' road joining Power House and the petitioner society. 5. The facts, in brief, as projected by the petitioners, in W.P. No. 3298/2000 are that the petitioners are running a school namely Gayatri Shishu Mandir, Rajnandgaon and Jamuna Lalita Manik Gayatri Vidyapeeth, Keshar-Nagar, Rajnandgaon. The petitioner No.2 is the Vice President of the cooperative society namely Patel Nagar Grih Nirman Sahkari Sanstha Maryadit, Rajnandgaon. The Director, Town & Country Planning i.e. the respondent No.2, in exercise of his powers under section 18 of the Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973 (for short 'the Act, 1973') invited objections in respect of Rajnandgaon Vikas Yojna, 2001 (for short, 'the Scheme'). Several objections were filed and finally, the Scheme was approved as per the map annexed at Annexure P/3. Lands were earmarked for different religions, even for Parsi religion when there was not a single Parsi citizen in the locality. Even Parsi grave yard was earmarked which was not in use. Under the Scheme, the entire city was divided into four units. The petitioners are claiming use of 80' road joining Gayatri Vidya Peeth. The first petitioner has already obtained a no objection certificate from the Municipal Corporation and the Collector (Nazul). It is admitted by the Assistant Director, Town & Country Planning that the Government has also sanctioned a sum of Rs. 5 lacs for construction of four roads out of which one is the concerned road i.e. the 80' road, as marked in saffron colour in the map. 6. Facts, in W.P. No. 648/2001, are the same to the facts in W.P. No. 3298/2001. In addition, the facts as stated by the petitioners in this petition, are that the petitioners had filed an objection regarding transferring the land earmarked for the graveyard of the Parsi community, to the Muslim Community upon which the petitioners including the private respondent/Intejamiya Committee were issued notice by the Nazul Officer, Rajnandgaon, on 23.03.2001, in Revenue Case No. 37-A/20(1)97-98. On account of alleged illegal construction by the respondent Dwoodi Bohra Committee, the entry to the Gayatri Vidya Peeth and the residents of Patel Nagar, have been blocked. Thus, similar reliefs have been prayed in this petition also, as prayed in other petition. 7. On account of alleged illegal construction by the respondent Dwoodi Bohra Committee, the entry to the Gayatri Vidya Peeth and the residents of Patel Nagar, have been blocked. Thus, similar reliefs have been prayed in this petition also, as prayed in other petition. 7. Shri Tamaskar, learned counsel appearing for all the petitioners would submit that the Tribunal has entertained a petition filed by the respondent No. 10 for grant of permanent injunction against others in favour of the construction of the boundary wall and shops on the proposed 80' road. The Tribunal has no competence and jurisdiction to entertain such petition (Annexure P/14) and pass such an order (Annexure P/15). Thus, the petition as well as the interim order be quashed and the authorities be directed to construct the road as proposed 80' road in the map, under the Scheme. He would further contend that the authorities have no power or jurisdiction to develop the land for any other purpose other than the purpose specified in the Scheme. Thus, the afore-stated reliefs. 8. On the other hand, the Daudi Bohra Jamat Anjuman-E-Ezzi as well as the private respondent-Ali Asgar, have filed a common return submitting therein that the proposed 80' road was proposed, ignoring the fact that the said road is passing through the graveyard of the Dawoodi Bohara Community, as it has been registered with the M.P. Wakf Board, Bhopal. The Muslim graveyard cannot be used for any other purpose and also no Wakf property can be sold, mortgaged or disposed of without the sanction of the Wakf Board. Mere inclusion of the land in dispute in the Scheme may not take away the character of the Wakf property and as such, the Tribunal has rightly granted interim relief and has entertained the petition at the instance of one member of the Bohara Community. The petitioners are not the party to the case before the Tribunal and as such, they cannot seek quashing of the interim order passed by the Tribunal. 9. Shri Moorthy, learned Deputy Advocate General appearing for the State would submit that the matter is subjudice before the Tribunal and as such, the allegation of the petitioner that the 80' road is not being used for the purpose for which it has been earmarked, is not correct. 9. Shri Moorthy, learned Deputy Advocate General appearing for the State would submit that the matter is subjudice before the Tribunal and as such, the allegation of the petitioner that the 80' road is not being used for the purpose for which it has been earmarked, is not correct. An order of injunction has been passed by the Tribunal against the State, thus, the construction of the 80' road could not be done. The Assistant Director, Town & Country Planning, has also issued notice on 01.11.1999 (Annexure R/1) to stop the construction against which a petition was filed on 15.03.2000 (Annexure P/14) before the Tribunal and an interim injunction was granted on 28.04.2000 (Annexure P/15). 10. Shri Sharma, learned counsel appearing for the respondent/Corporation would submit that under the scheme, there is a proposal for construction of four roads including the road in question and also a sum of Rs. 5 lacs was granted for its construction, however, the respondent/Corporation could not do anything in view of the injunction granted by the Tribunal. 11. In W.P. No. 3298/2000, despite service of notice, none appears on behalf of respondent No.6, 7, 9 & 10, and in W.P. No. 648/2001, none appears on behalf of respondent No.7 and 8. However, the respondent No.7, i.e. Dawoodi Bohra Jamat Anjuman-E-Ezzi, is a party to W.P. No. 3298/2000 and has filed its return. 12. Heard learned counsel appearing for the parties, perused the pleadings and documents appended thereto. 13. Admittedly, a show cause notice was issued by the State authorities to the Secretary of the Anjuman Ezzi Committee, Rajnandgaon on 01.11.1999 (Annexure R/1) for stopping construction on the proposed 80' road. Against that, a petition was filed on 15.03.2000 before the Tribunal claiming that the said property was a Wakf property. The Tribunal passed the impugned interim order on 28.04.2000 restraining the State authorities from interference with the construction of the wall of the Wakf property. It is not clear as to whether the case pending before the Tribunal has been decided by this time as no documents has been filed. 14. The petitioners have challenged the order dated 28.04.2000 passed by the Tribunal, wherein they were not a party. The State was a party and it was for the State to oppose the interim injunction and also contest the case on the basis of the Scheme. 14. The petitioners have challenged the order dated 28.04.2000 passed by the Tribunal, wherein they were not a party. The State was a party and it was for the State to oppose the interim injunction and also contest the case on the basis of the Scheme. The nature of the land as to whether it is a Wakf property or it belongs to the public, has to be decided by the Wakf tribunal. Without making any observation on the merits of the case, as the matter seems to be still pending consideration, no interference is warranted with the order dated 28.04.2000 (Annexure P/15). Further, no direction as sought in these petitions can be issued. 15. So far as the question of quashing of the petition (Annexure P/14) is concerned, the same is misconceived as the petition filed before the Tribunal cannot be quashed simply on the asking of the petitioners i.e. the private persons, on any ground. The petitioners are one of the beneficiaries. If the petitioners are aggrieved by the dispute between the respondent Bohara Community and the State, and if the rights of the petitioners to access through the property, is infringed, the petitioners may approach the competent jurisdictional Court. This Court lacks wherewithal to decide the nature of the property in dispute. Further, if there is a conflict between the State scheme as they have proposed some road on the property, this also has to be resolved by the State Government itself. Thus, no decision on merits can be taken and also no direction to construct the road or not, can be issued. It is for the petitioners to take recourse either to the appropriate forum or to the State Government either seeking modification of the Scheme or for any other appropriate relief, if so advised. 16. Reliance of the petitioners in the matter of R.K. Mittal & Others Vs. State of Uttar Pradesh & Others (2012) 2 SCC 232 , is not relevant to the facts of the instant case. There is no dispute as laid down by the Supreme Court in R.K. Mittal (supra), that specified use of the land as provided in the Master Plan cannot be altered for any other purpose. These plans have a binding effect in law. There is no dispute as laid down by the Supreme Court in R.K. Mittal (supra), that specified use of the land as provided in the Master Plan cannot be altered for any other purpose. These plans have a binding effect in law. In the case on hand, the Government has not changed the user of the land, however, the use of the land was in respect of construction of a road, which needs to be resolved. The dispute is pending consideration before the Wakf Tribunal, a judicial Tribunal, the State may put forward its case to justify its development scheme. 17. Liberty is reserved to the petitioner to make representation to the State Government for grant of appropriate relief on the basis of the Scheme and the State Government may consider the same having regard to the aforestated facts situation and pass appropriate orders. 18. In view of the foregoing and for the reasons stated hereinabove, both the writ petitions stand disposed of. 19. No order as to costs. Petitions Dismissed.