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2014 DIGILAW 460 (RAJ)

Sarwar Siddiqui v. Syed Anwar Ali

2014-02-12

AMITAVA ROY, VEERENDR SINGH SIRADHANA

body2014
JUDGMENT 1. - Heard Mr. Anil Mehta, the learned counsel for the appellant. 2. For the order proposed to be passed, it is not considered essential to issue formal issue. 3. The respondent No.1 herein, instituted S.B. Civil Writ Petition No.14611/2009, seeking appropriate writ, amongst others, to interfere with the order dated 02.09.2008, passed by the learned Civil Judge & Chief Judicial Magistrate, Ajmer, appointing the appellant herein, as the acting Chairman of the Dargah Hajrat Meera Sahab, Taragarh, Ajmer (for short, hereafter referred to as 'the Dargah') and to appoint a regular Chairman in his place. An appropriate direction was also sought for to order the learned Civil Judge, Ajmer (respondent No.2 in the writ petition) to hold a proper enquiry against the appellant. The respondent No.1 pleaded that as far back in the year 1894, a suit i.e. Civil Suit No.213/1894 Nazaf Ali & Ors. Khadims of the Dargah Meera Sahab v. Gulzar Ali , was instituted alleging chiefly that the Dargah was not being properly managed and further due to financial irregularities, it was being exposed to considerable loss. By the judgment and order dated 27.10.1896, the learned Sub Judge, First Class, Ajmer, formulated a scheme for efficient supervision and control of the Dargah, where-under a Committee comprised of three members, two of whom were to be appointed by the Khadims by election from amongst themselves and a president thereof, was contemplated. The president of the Committee was to be a Mohamadan and all the members were required to be adult males of respectability. The person convicted of a serious offence under the Indian Penal Code i.e. theft, criminal breach of trust or the like or of bad character, was construed to be ineligible for the membership. The respondent No.1 averred that since thereafter, the Dargah had been managed and supervised by the Managing Committee. That the Chairman was being nominated by the Civil Judge-cum-Chief Judicial Magistrate, Ajmer, was mentioned as well. He further stated that the Civil Judge, Ajmer appointed the appellant as the Chairman/President of the Managing Committee by his order dated 03.01.1989. He alleged that in the face of several complaints, he (appellant) was removed from the office of the Chairman on 03.08.1989. He, however, could manage to continue in the office on the strength of interim order obtained by him in S.B. Civil Writ Petition No.3179/1989, which was eventually dismissed as in-fructuous. He alleged that in the face of several complaints, he (appellant) was removed from the office of the Chairman on 03.08.1989. He, however, could manage to continue in the office on the strength of interim order obtained by him in S.B. Civil Writ Petition No.3179/1989, which was eventually dismissed as in-fructuous. According to the respondent No.1, a specific complaint was made against the appellant on 23.06.1990 and though, an enquiry on the basis thereof was ordered by the learned Civil Judge, Ajmer and the allegations were found to be correct, no action was taken against him (appellant). It was, thereafter, that the appellant was again appointed as the Chairman of the Committee by the learned Civil Judge, Ajmer by his order dated 05.07.2003. The respondent No.1 has alleged that though a number of complaints had been filed against the appellant, highlighting his continuous misconduct vis-a-vis management of the Dargah, the learned Civil Judge, Ajmer, without making any enquiry in connection thereto, again appointed him the Chairman of the Managing Committee vide order dated 02.09.2008 until further orders. Contending that in-spite of several pending complaints, no enquiry was being conducted and that instead, the appellant was made to continue as the Chairman of the Committee for over two decades, the respondent No.1 therefore, sought to invoke the writ jurisdiction of this Court for redress. 4. The appellant, in his reply, while admitting that the supervision and control of the Dargah, in terms of the judgment and order dated 27.10.1896, referred to here-in-above, was entrusted to the Managing Committee, however, denied the imputations levelled against him. He, instead, pleaded that FIR No.94/90 at Police Station Ganj, Ajmer under Sections 408, 420, 467, 468, 471 IPC had been registered against the respondent No.1 and that after completion of the investigation, challan has been filed against him and that the criminal proceeding was pending in the Court of Additional Chief Judicial Magistrate No.1, Ajmer. Asserting that he had been discharging his duties as the Chairman of the Managing Committee without any blemish, the appellant dismissed the allegations in the writ petition as unfounded and malafide. 5. Asserting that he had been discharging his duties as the Chairman of the Managing Committee without any blemish, the appellant dismissed the allegations in the writ petition as unfounded and malafide. 5. The respondent No.2 i.e. Civil Judge & Chief Judicial Magistrate, Ajmer-cum-Administrator and Controller of the Dargah Hajrat Meera Sahab, Taragarh, Ajmer, while admitting the adjudication made in Civil Suit No.213/1894 and constitution of the Management Committee, in terms of the judgment and order dated 27.10.1896 rendered therein, stated that he had been recently transferred to the post only a year back and questioned the locus of the respondent No.1, branding him to be a stranger and not associated, in any manner, with the interest of the Dargah. While admitting that meanwhile, as averred by the respondent No.1, the appellant had been once removed from the office of the Chairman, the respondent No.2 conceded that he was not in a position to reply to the allegation that the appellant had been misappropriating from the annual income of the properties of the Dargah and donation amount of Rs. 20 lakhs and that to cover up the same, he is getting audit of the accounts, done by a person of his choice. The reply of the respondent No.2, however, does not contain any specific denial to the allegation of the respondent No.1 that a number of complaints were pending against the appellant and that the learned Civil Judge, Ajmer was not getting any enquiry done into it. 6. In course of the arguments, Mr. Mehta has laid before us a copy of the affidavit submitted by the respondent No.2 to the effect, inter alia, that in the year 2013, election of two members of the Managing Committee of the Dargah had been conducted and that by his order dated 03.09.2013, the appellant had been nominated as the adhoc Chairman of the said Committee. That under the scheme, set out in the judgment and order dated 27.10.1896, no procedure for nomination of the Chairman of the Managing Committee, had been set out, was mentioned as well. In the affidavit, it is stated further that he had no information about pendency of any complaint against the appellant, or any enquiry in connection therewith. 7. That under the scheme, set out in the judgment and order dated 27.10.1896, no procedure for nomination of the Chairman of the Managing Committee, had been set out, was mentioned as well. In the affidavit, it is stated further that he had no information about pendency of any complaint against the appellant, or any enquiry in connection therewith. 7. The learned Single Judge, by judgment and order impugned, on a consideration of the pleaded facts and the documents on record as well as the aforementioned affidavit of the respondent No.2, did notice that the order dated 03.09.2013, nominating the appellant as the adhoc Chairman of the Committee, had been passed during pendency of the writ proceedings, whereupon on 30.10.2013, the following order had been passed:- "It is surprising that despite observations made by this court vide order dated 07.11.2012 that same person (Haji Sarwar Siddiqui), who is being continued as President of the Dargah Hajrat Meera Sahab, Taragarh, District Ajmer, for last 23 years, the Chief Judicial Magistrate, Ajmer, has again, vide order dated 23.08.2013, appointed him as ad-hoc President because certain enquiries is pending against him for a long time. The Chief Judicial Magistrate, in the Scheme prepared by Sub Judge, Ajmer, way back on 27.10.1896, has been empowered to act as Administrator. It is he who is empowered to appoint the President and Committee. The Chief Judicial Magistrate is a party respondent no.2 to the present writ petition. He is represented by Shri Aditya Narain Sharma, before this court. The Chief Judicial Magistrate should file his affidavit, why despite categorical observations of this court in the order dated 07.11.2012, he reappointed the same person again as ad-hoc President despite pendency of enquiry on allegations of irregularity against him. Parties may file their suggestions for appropriate modification of the aforesaid scheme prepared by the court. A copy of this order be sent to the Chief Judicial Magistrate, Ajmer for compliance. Matter to come up on 25.11.2013." 8. Parties may file their suggestions for appropriate modification of the aforesaid scheme prepared by the court. A copy of this order be sent to the Chief Judicial Magistrate, Ajmer for compliance. Matter to come up on 25.11.2013." 8. On a thorough consideration of the contents of the affidavit filed by the respondent No.2, in which he, inter alia, asserted that he was not aware of any complaint pending against the appellant, or any enquiry in connection therewith, and that there was no procedure laid down in the judgment and order dated 27.10.1896 for nomination of the Chairman of the Committee, the learned Single Judge disposed of the writ petition with the following directions:- "(i) The Chief Judicial Magistrate is directed to complete the enquiry against the respondent No.1 within a period of two months from the date of receipt of certified copy of this order. All the parties would cooperate with the Chief Judicial Magistrate and if non-cooperation is shown, the Chief Judicial Magistrate may proceed with the matter and conclude it within the time given by the Court. (ii) To have a proper candidate for nomination as Chairman of the Committee, the Chief Judicial Magistrate is directed to call for the nominations by publishing an advertisement in the local news paper. He would then make a scrutiny of the candidatures and appoint a best possible person. It would be after taking note of the whereabouts and getting a certificate from the police of the area concerned about his character. The procedure for nomination aforesaid may be completed within three months from the date of receipt of certified copy of this order. (iii) The respondent No.1 would be at liberty to apply for it and the process for nomination may be completed by the Chief Judicial Magistrate after conclusion of the enquiry. Till the directions aforesaid are complied with, the person nominated would operate and will remain in affairs, however, the respondent No.1 is directed to work solely in the interest of the Committee and if any allegations are levelled, it would be viewed seriously. The aforesaid can be looked into by the Chief Judicial Magistrate concerned. Till the directions aforesaid are complied with, the person nominated would operate and will remain in affairs, however, the respondent No.1 is directed to work solely in the interest of the Committee and if any allegations are levelled, it would be viewed seriously. The aforesaid can be looked into by the Chief Judicial Magistrate concerned. (iv) For the purpose of enquiry, not only the respondent No.1 would cooperate, but also produce all the accounts required for the purpose and if it is not made accessible, the Chief Judicial Magistrate is directed to cause enquiry by getting access to all the records necessary for the purpose of enquiry." 9. As it would transpire from the directions, quoted here-in-above, the learned Single Judge directed the learned Civil Judge-cum-Chief Judicial Magistrate, Ajmer to complete the enquiry against the appellant within a period of two months and also to initiate a process for nomination to the office of the Chairman of the Committee, in the manner, detailed by His Lordship. On completion of the enquiry, as the directions would reveal, the appellant was also left at liberty to participate in the process of nomination for the office of the Chairman of the Committee. It was observed as well that till directions are complied with, the person nominated would operate and "will remain in affairs". The appellant was, however, alerted to work solely in the interest of the Committee, so much so that if any allegation was levelled against him, it was to be viewed seriously. 10. Mr. Mehta has urged that as no complaint whatsoever is pending against the appellant, the direction to conduct enquiry against him is wholly unwarranted and as the same, amongst others, would lower him in the estimation of all concerned, to his detriment and prejudice, the impugned judgment and order, in the interest of justice, ought to be interfered with. 11. When queried by this Court, the learned counsel, however, submitted that the enquiry, in terms of the impugned judgment and order, has since been initiated. 12. On a consideration of the pleadings on record and the documents in support thereof, we are not inclined to interfere. As it is, the appellant is continuing in the office of the Chairman of the Managing Committee for over two decades as on date and is presently holding the said office on adhoc basis. 12. On a consideration of the pleadings on record and the documents in support thereof, we are not inclined to interfere. As it is, the appellant is continuing in the office of the Chairman of the Managing Committee for over two decades as on date and is presently holding the said office on adhoc basis. Though, the respondent No.2 in his affidavit, stated that he had no information about any pending complaint against the appellant or in relation thereto, his reply in the writ proceeding, in our comprehension, is not very categorical to this effect. This assumes significance in view of the averment made by the respondent No.1 on solemn affirmation about pending complaints against the appellant as well as the failure on the part of the respondent No.2 to conduct an enquiry in connection therewith. A series of allegations of misappropriation against the appellant vis-a-vis the income from the properties of the Dargarh and fudged accounts in connection therewith, has also been made in the writ proceeding. The appellant's statement that challan has been submitted in the criminal case against the respondent No.1, per se, in our opinion, is not sufficient to conclude that the determination made in the impugned judgment and order to conduct an enquiry, is wholly uncalled for. This is more so, as a religious institution of public eminence is involved. On a plain reading of the directions issued by the learned Single Judge, we are of the considered opinion that in the attendant facts and circumstances, those are evenly balanced and directed towards securing the best interest of the Dargah. Admittedly, the enquiry in compliance of the directions issued by the learned Single Judge has since commenced. 13. In the above view of the matter, we do not find any convincing reason to interfere. 14. The appeal thus, fails and is dismissed. The stay application also stands rejected.Appeal Dismissed. *******