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2021 DIGILAW 1639 (RAJ)

Syed Azizsaddique @ Badshah Miyan v. Nisar Ahmad

2021-09-06

SANJEEV PRAKASH SHARMA

body2021
JUDGMENT 1. The matter comes up on an application (I.A. No.2/2021) filed by the respondent No.5 for vacation of stay. 2. It is informed that one of the defendant in the case has challenged the order impugned herein before the Revenue Board and the same is still pending. 3. Learned counsel for the respondents submits that with regard to the same order and proceedings before the Survey Commissioner, a contempt petition No.32/2016 in Civil Appeal No.3643/2008 Syed Zainul Abedeen v. Abdul Rashid @ Chand and Anr was filed wherein the Supreme Court has passed the following order:- "Heard the learned counsel for the petitioner and perused the relevant material. The Contempt Petition is dismissed. However, liberty is granted to the petitioner to avail of such remedies as may be open to him in law against the order dated 1st July, 2015 passed by the Additional District Magistrate, Jaipur in Jagir Case No.03/2013." 4. Thereafter, Syed Zainul Abedeen has already preferred proceedings before the Revenue Board in Revision Petition against the order of ADM in Jagir Case No.03/2013. 5. Learned counsel for the respondents further submits that the petitioner too, who is one of the co-respondents and his brother of Syed Zainul Abedeen has remedy available under Section 39 of the Act of 1952 to challenge the order of learned Additional Collector before the Revenue Board but he has filed the present petition concealing above facts. Learned counsel also submits that the Supreme Court in Civil Appellate Jurisdiction has decided the appeal of Syed Zainul Abedeen holding that the property in question cannot be claimed as Waqf-Alal-Aulad as it is to be examined under Section 6 of the Act of 1954. The orders challenged by him were upheld and the civil appeal has been dismissed vide its judgment dated 30.08.2019. 6. Learned counsel submits that the petitioner is brother of Syed Zainul Abedeen and claims on the same property which is in question before the learned Additional Collector and has not mentioned all these aforesaid facts of this application and without mentioning these facts, the writ petition has been filed and therefore the interim order passed, deserves to be vacated. 7. Learned counsel submits that the petitioner is brother of Syed Zainul Abedeen and claims on the same property which is in question before the learned Additional Collector and has not mentioned all these aforesaid facts of this application and without mentioning these facts, the writ petition has been filed and therefore the interim order passed, deserves to be vacated. 7. Per contra, learned counsel appearing for the petitioner submits that the Collector does not have the jurisdiction to hear the matter as even if the judgment of Supreme Court is taken into consideration the property has to be examined under the Waqf Act and therefore the proceedings before the concerned court in Jagir Case No.03/2013 have rightly been stayed by this Court vide order dated 25.01.2019. 8. This Court finds that in the writ petition the petitioners have mentioned about the judgment passed by the Supreme Court dated 16.05.2008 in Civil Appeal No.3643/2008. With regard to the same judgment, the aforementioned contempt proceedings were taken up and the Supreme Court has dismissed the contempt petition with liberty to challenge the order in appropriate forum. Accordingly, the revision has been filed by the brother of the petitioner. However, while the petitioners mentioned about the order passed in civil appeal No.3643/2008, they conveniently did not mention about the subsequent order passed by the Supreme Court in the Contempt proceedings and also did not mention that other co-respondent/s have already taken up the matter before the Revenue Board. 9. Thus, it is clear that the petitioner has concealed material orders from this Court and has also not mentioned about the revision petition which is pending before the Board of Revenue. 10. Learned counsel has informed that the revision petition is pending. Thus, it cannot be said that the petitioner or his counsel does not know about the pendency of the revision petition. 11. In these circumstances two different forums cannot be taken up by two brothers separately assailing the same order. The present case is a clear case of forum searching which cannot be allowed. While rejecting the said application, the writ petition is also dismissed on account of above reasons with a cost of Rs.25,000/- to be deposited with the Rajasthan State Legal Services Authority. 12. All pending applications, if any, stand disposed of. The stay order dated 25.01.2019 stands vacated.