Judgment:
1.By this petition, the petitioners, firstly; seek a direction to the respondents No.1 to 3 to cancel the lease, if any, granted to the respondent No.5 and/or to revoke the same. Secondly; a direction be issued to the respondents No.1 to 3 to correct the revenue record with respect to Khasra No.736 of Civil Station (Civil Lines), Raipur, which are recorded as plot No.8/1 to 8/4 block No.16 total area 34883 sq.ft. Thirdly; quashing the proceedings pending before the Nazul Officer, Raipur, being without jurisdiction and a last prayer was added by amendment, ordered on 6-4-2010, that the order dated 31-7-2004 passed by the Nazul Officer in Revenue Case No.80/B-12/2003-04, as also against the order dated 15-9-2004 passed by the Nazul Officer, Raipur in Revenue Case No.80/B-121/03-04, order dated 14-6-2005 passed by the Additional Collector, Raipur in Revenue Case No.121/2-B/2004-05.
2.The indisputable facts, in brief, as projected by the petitioners, for proper adjudication of the case, are that the first petitioner - Jama Masjid is a public trust registered with the Registrar of Public Trust, Raipur. The trust has immovable properties including the petition-schedule land known as Risali Naka, Eedgah-Kabristan admeasuring 38082 sq.ft. After the Indian Wakf Act came into force, the said property was registered as a wakf property with the Wakf Board, Bhopal.
3.The respondent No.5 - M/s Raipur Transport Company Pvt. Ltd., was granted a lease of 14880 sq.ft. out of the said land, which was revoked on the application of Munshi Mehruddin and renewal was refused in 1965. The chars No.736/89 of Civil Lines, Raipur, and shown as Risali Naka, Eedgah-Kabristan, was divided into block No.16, plot No.8/1 area of 18353 sift., plot No.8/2 area of 70 sq.ft., plot No.8/3 area of 14880 sq.ft. and plot No.8/4 area of 810 sq.ft. Total area 34113 sq.ft.
4.There is pre-existing graveyard and many graves are still there. Despite grant of lease, the respondent No.5 was never in physical possession of the petition-schedule land. On the application of Munshi Mehruddin made in the year 1965, on spot inspection, a discrepancy was found in allotment of lease of plot No.8/3 of block No.16 granted to the respondent No.5. It was recommended to treat the whole area of chars No.736/89 as Sacristan. It is a wakf property under the management and control of Jama Masjid, Raipur.
5.The respondent authorities have handed over the possession of the said land to the respondent No.5. The Nazul Officer by order dated 31-7-2004 (Annexure - P/9) directed the petitioners to remove the encroachment from chars No.736, block No.16, plot No.8/3 area of 14880 sq.ft. Thereafter, on 15-9-2004, the Nazul Officer after having heard both the parties observed that Fourth Civil Judge, Civil Court, Raipur, has passed an interim injunction holding that the respondent No.5 was in possession and ownership of the petition-schedule land, thus it was held that the respondent No.5 was the owner of the petition-schedule land. It was further held that the land in dispute was not the property of Sunni Muslim.
6.Since the petitioners have not complied with the order of Civil Court, the order of encroachment was passed accordingly for non-compliance of the order passed by the Civil Court. Order of removal of encroachment was passed on 15-9-2004 (Annexure - P/11) that is under challenge in this petition. Thereafter, the Additional Collector, Raipur, in appeal, by impugned order dated 14-6-2005 (Annexure - P/12) dismissed the appeal filed by Jama Masjid finding the order passed by the Nazul Officer as just & proper. Thus, this petition.
7.Shri Agawam, learned senior counsel appearing with Ms. Fouzia Mirza, Ms. Farah Minhaz & Shri R.K. Pali, learned Advocates for the petitioners, would submit that the impugned orders passed by the authorities are without jurisdiction. The respondent No.3 could not have passed the order of removal of encroachment in a proceeding under Section 129 of the Chhattisgarh Land Revenue Code, 1959 (for short "the Code, 1959"). Shri Agawam would further submit that the respondent No.5 was never in possession of the land, thus the proceedings under Section 250 of the Code, 1959 could not have been initiated. The action of the respondent authorities is politically motivated and the impugned order was passed on the basis of instructions received from the office of the Chief Minister as well as the Home Minister. The respondent authorities failed to consider the report of Annexure - P/5 submitted by the Extra Assistant Commissioner.
8.On the other hand, Shri Kishore Bradbury, learned Additional Advocate General appearing with Shri Ajay Dwivedi, learned Deputy Government Advocate for the State/respondents No.1 to 4, would submit that the allegation that the Nazul Officer has acted on undue pressure of the office of the Chief Minister as well as the Home Minister is without any basis. The application was moved before the Chief Minister in 'Jandarshan programme' wherein it was simply referred to the Collector without any direction and instruction. The Home Minister has also not interfered with the quasi judicial process of Nazul Officer. Simply, the application made to the Home Minister was sent to the Collector without any observation and direction and, as such, the allegation of interference and undue pressure of the office of Chief Minister as well as Home Minister is baseless and unsubstantiated.
9.Shri Bradbury would further submit that the order of the Nazul Officer is in consonance with the order passed by the competent Civil Court granting interim injunction in favour of the respondent No.5. The petitioners had also filed a civil suit being No.3-A of 69 (Abdul Habib & Others v. The State of Madhya Pradesh & Others) for declaration and permanent injunction, which was dismissed for want of prosecution. Thereafter, an application for restoration was also dismissed. The petitioners have not taken the said decision to the superior Courts, but accepted the decision and, as such, the petitioners cannot question the order passed by the Nazul Officer at this stage. The same is just & proper.
10.Shri Rajeev Shrivastava, learned counsel appearing with Shri Sourabh Dangi, Shri Malay Shrivastava & Shri Sameer Shrivastava, learned Advocates for the respondent No.5, would submit that the petitioners filed a civil suit for declaration of the title on the land, bearing chars No.736. By order dated 16-11-1976, the application for amendment was dismissed by the fourth Civil Judge. Thereagainst, a Revision, being civil revision No.1205 of 1976 (Abdul Habib & Others v. Shri Mohanlal Vyas & Another), was preferred by the first petitioner before the High Court of Madhya Pradesh, which was dismissed by order dated 24-11-1976. Thereafter, the civil suit filed by the petitioners was also dismissed for want of prosecution on 24-2-1982 and an application for restoration of the same was also dismissed. Thereafter, no action was taken by the petitioners and, as such, the same became final. Shri Shrivastava would further submit that the respondent No.5 has also filed a civil suit for declaration being civil suit No.38-A/1982 (M/s Raipur Transport Company Pvt. Ltd. v. Abdul Habib & Others) for declaration and perpetual injunction, wherein an interim injunction was granted on 9-7-1982 in favour of the respondent No.5.
11.Shri Shrivastava would next submit that the petitioners, after an order of interim injunction passed in favour of the respondent No.5, made illegal encroachment on the petition- schedule land. Accordingly, an application was made before the Nazul Officer and the Nazul Officer by order dated 15-9- 2004 having considered the order passed by the Civil Court and subsequent encroachment by the petitioners directed removal of the encroachments, which was in accordance with law. The petitioners have defied the order passed by the Civil Court without taking any permission of the Civil Court or without seeking modification or vacation of the interim injunction by the Civil Court when they were party defendants to the civil suit, by encroaching the suit land. Thus, there is no merit in this case and this petition may be dismissed.
12.In rejoinder, Shri Agawam, learned senior counsel would submit that the respondent No.5 was never in physical possession of the petition-schedule land, therefore, no proceedings can be initiated under Section 250 of the Code, 1959. The petitioners have not been afforded any opportunity of hearing while passing the order dated 1-9-2004 (Annexure - P/10).
13.I have heard rival contentions advanced by the learned counsel appearing for the parties, perused the pleadings and the documents appended thereto.
14.The petitioners have clubbed reliefs arising from separate and different causes of action in the petition. However, at the time of hearing, learned counsel appearing for the petitioners gave up other reliefs except the relief No.7.6 to quash the orders dated 31-7-2004 & 15- 9-2004 passed by the Nazul Officer and the order dated 14-6- 2005 passed by the Additional Collector, Raipur, confirming the order dated 15-9-2004 passed by the Nazaul Officer, as is evident from the written submissions submitted by the petitioners. Even otherwise, different cause of action cannot be clubbed together under the provisions of law. (See: Indrajit Markam v. State of Chhattisgarh & Others1).
15.The petitioners filed the civil suit No.3-A of 69 (Annexure - R/5 - 28) for declaration and permanent injunction wherein Shri Mohanlal Vyas, Director, Raipur Transport Company (respondent No.5 herein) was defendant No.3. Collector, Raipur, Nazul Officer, Raipur were also the defendants No.2 & 4, respectively. In the said civil suit, the petitioners prayed for following reliefs : "(i) It be declared that the suit property the Kabarstan and Idgah shown in the plaint map by letters A B C D are wakf property and the Defendant Govt. was/is not entitled to lease out such wakf property. (ii) The defendants be restrained by permanent injunction from entering or in any way taking possession of the suit property, by executing the above said order in Misc.Cr.C.No.97/64, or otherwise. (iii) That the defendants by order to pay the costs of this suit to the plaintiffs, and"
16.Thereafter, an application for amendment in the civil suit was filed on the basis of notification published in the gazette dated 1-11-1974 (Annexure - R/5-18) wherein the chars No.736 measuring 0.89 acres situated in Baijnathpara Ward, Raipur, was notified as 'wakf property'. The application for the said amendment was dismissed on 16-11-1976. Thereagainst, a civil revision was preferred before the High Court of Madhya Pradesh at Jabalpur, being civil revision No.1205 of 1976, (Annexure - R/5-19). The said civil revision was dismissed on 4-11-1976 holding as under : "2.The contention raised on behalf of the applicants is that the Wakf Board has now declared the suit land as the Wakf Property with effect from 15-6- 1974 and this has been duly published in M.P. Rajpatra dated 1-11-1974. Thereafter, the amendment ought to be allowed. 3.In my opinion, the decision of the Wakf Board cannot effect the defendant No.1's rights and the Wakf Board can only acquire rights subject to the decision of the suit."
17.Subsequently, the civil suit No.3-A/69 was dismissed on 24-2-1982 (Annexure - R/5-5) for want of prosecution. Thereagainst, the petitioners preferred an application for restoration of civil suit being M.J.C. No.7/2001 (Abdul Habib & Others v. State of M.P. & Others). The said application was dismissed on 13-10-2003 (Annexure - R/5-6) by the Civil Court. Admittedly, no appeal/revision was preferred by thepetitioners against the order dated 13-10-2003 passed by the Civil Judge Class - II, Raipur. Thus, all the claims of the petitioners including on the basis of notification declaring a portion of the land as wakf property came to an end, as no challenge, thereafter, was made to the superior Courts.
18.Thereafter, the respondent No.5, herein, filed a civil suit No.38-A/82 (Annexure - R/5-29) before the Court of Civil Judge Class-II, Raipur against the petitioners seeking declaration and perpetual injunction on the nazul land comprised in plot No.8/3, block No.16 area 14880 sq.ft. or thereabout a portion of chars No.736 situated in civil station ward near Salem Girls English School, Raipur city, Raipur. In the said civil suit, the respondent No.5 prayed for following reliefs : "(a) A declaration that the Plaintiff is the sole, absolute and exclusive owner of the suit property in its own right as the permanent lessee of the State of Madhya Pradesh. (b) A declaration that the plaintiff is entitled to retain possession of thesuit property, both on the basis of its subsisting title as well as in terms of the finalorders dated 25-8-64 passed by the sub- Divisional Magistrate under Section 145(4), Cr.P.C. in Misc. Criminal Case No.97 of 1964. (c) A declaration that the Defendants never had nor have how any right, title or interest of any kind in the suit property or in any portion thereof. (d) A perpetual injunction restraining the Defendants, their members, servants, agents or employees, from interfering with or disturbing the possession of the plaintiff over the suit property."
19.The Civil Judge, by order dated 9-7-1982 (Annexure - R/5- 7), on perusal of the reports, passed the following order holding, prima facie, the respondent No.5 as owner and in possession of the suit land to maintain status
20.Thereafter, it appears that the said civil suit filed by the respondent No.5 is still pending consideration. No steps have been taken by the petitioners to get either the same vacated or modified by the Civil Court. The competent Civil Court is in seisin of the matter in dispute.
21.According to the learned counsel appearing for the respondent No.5, encroachment was made by the petitioners on the teeth of the order passed by the Civil Court on the petition-schedule land wherein the order of the civil Court to maintain status quo in respect of the possession was passed. Thus, the respondent No.5 was forced to make an application before the Collector on 7-1-2004 (Annexure - R/5- 25) seeking compliance of the order passed by the Civil Judge in the matter. A copy of the said application was marked to the Home Minister, State of Chhattisgarh and other officers.
22.The Nazul Officer issued notice to the petitioners vide Annexure - R/5-26 (i) to the effect that they have made encroachment in the petition-schedule land and, as such, why the same may not be removed. A public notice vide Annexure - R/5-26 (ii) was also issued that on 25-8-2004 the illegal encroachments on the petition-schedule land shall be removed. On 25-8-2004 the proceeding was initiated wherein all the concerned parties were present. On 31-7-2004 (Annexure - P/9), the Nazul Officer passed the order to inform the petitioners to remove the encroachment within a period of 15 days, failing which it was proposed to take proper action for removal.
23.Learned counsel appearing for the petitioners urge that the order dated 31-7-2004 was passed at the instance of the Chief Minister as well as Home Minister. I have perused the letter addressed to the Chief Minister wherein the case was referred to the Collector without any observation or direction to consider the case in a particular manner. Thus, it cannot be held that there was any undue influence or pressure on the Nazul Officer before passing the order. Though, direction/letter of the Home Minister was not produced, however, on perusal of the observation made by the Nazul Officer, it appears that the Home Minister has directed to take steps on the application of the respondent No.5 in accordance with law. Thus, it cannot be held that the order dated 30-7-2004 is vitiated, on the ground that there was a simple reference to the letters from the office of the Chief Minister and Home Minister, but it was not found that any order was passed on the basis of above-stated letters. On that date, it was decided to inform the petitioners to remove the encroachment within 15 days.
24.It appears that no steps have been taken by the petitioners for removal, thus the final order was passed on 15-9-2004. In the order dated 15-9-2004 there is a clear mention that as per the order passed by the Civil Judge the petition-schedule land was in ownership and possession of the respondent No.5. It was further observed that after the order was passed by the competent civil Court, the petitioners had encroached upon the land in dispute. Thus, the order of removal of the encroachment was passed on 15-9- 2004. Thereagainst, the appeal before the Additional Collector was also dismissed affirming the order passed by the Nazul Officer, on 14-6-2005.
25.The submission of the learned senior counsel appearing for the petitioners that the Nazul Officer could not have passed the order under Section 129 of the Code, 1959, is misplaced, as there was no application for demarcation, whereupon, impugned orders were passed.
26.On perusal of the order dated 31-7-2004, it does not reflect that the order was passed on any other application, which might have been moved for demarcation. The order was passed on the basis of above-stated application, which was clearly made for removal of the encroachment from the petition-schedule land. Reference of the petitioners to the order dated 16-1-2004 wherein there is a discussion about the demarcation of the petition-schedule land is not conclusive to the effect that the order was passed in the application, which was made for demarcation. Thus, the contention of the learned counsel for the petitioners fails on facts.
27.The contention of the learned counsel appearing for the petitioners that the respondent No.5 was never in physical possession of the petition-schedule land and, as such, no proceedings under Section 250 of the Code, 1959 could be initiated cannot be decided in this petition, as the dispute with regard to ownership and possession is pending consideration in the Court of Civil Judge in civil suit No.38-A/82 filed by the respondent No.5 and the interim order dated 9-7-1982 passed by the Civil Judge is still operative not being modified or vacated subsequently. The report of Extra Assistant Commission (Annexure - P/5) can also not be examined at this stage, as the dispute, as aforestated, in respect of the petition-schedule land, is pending consideration before the Civil Court. The notification in respect of the wakf property was sought to be incorporated in the civil suit No.3-A/69 by application for amendment, which was rejected and the civil revision preferred, thereagainst, was also rejected by the High Court of Madhya Pradesh holding that all the disputes would be subject to final decision of the civil suit. Thereafter, the civil suit was dismissed for want of prosecution and even the restoration application was also dismissed, which had attained finality for want of challenge in the superior Courts. Thus, there is no merit in this case.
28.The order passed by the Nazul Officer was in consonance of the order of status quo passed by the Civil Judge. Thus, the same cannot be held as vitiated, if the petitioners have any grievance, the petitioners could have approached the civil Court for modification/vacation of the interim order dated 9-7-1982 passed by the competent Civil Court, which is still in existence, in favour of the respondent No.5.
29.This Court on 24-6-2005 having considered the case of the petitioners, stayed the dispossession/demolition and further directed to maintain status quo till the next date of hearing. Subsequently, after hearing both the parties on 8-9- 2006, the interim order dated 24-6-2005 was modified as under : "Shri Kanak Tiwari, learned Sr. Advocate appearing for applicant-respondent No.5 would submit that by virtue of interim order made by the civil Court, from 1982 till date he has been in possession and enjoyment of the suit schedule property and without disclosing the fact to the Court, the other side has secured the interim order at the hands of this Court on 24.06.2005 and in view of this undeniable fact, the interim order is liable to be vacated. On the other hand, learned counsel for the other side was also heard. Essentially what this Court directed vide interim order dated 24.06.2005 is directing the parties to maintain status quo that obtained as on that date. It is clarified that if the 5th respondent-applicant has had the benefit of the interim order in his favour as on 24.06.2005, status quo order passed by this court would not alter the effect and consequence of such interim order. With these observations this M.(W)P. No.2965 of 2006 is disposed of."
30.Thus, the interim order passed by the civil Court continues, as the same was not modified by this Court while directing to maintain status quo as on 24-6-2005.
31.However, having regard to the facts situation of the case that the matter is pending consideration before the Civil Court for about three decades, the Civil Court is directed to consider and decide the same, in accordance with law and on its own merits, as early as possible preferably within a period of six months from the date of receipt of a copy of this order.
32.It is well settled proposition of law that the writ Court is not the proper forum for adjudication of the property disputes or disputes relating to tile. (See : Mohammed Hanif v. The State of Assam2, M/s. Hindustan Steel Limited, Rourkela v. Smt., Kalyani Banerjee and Others3 and Shalini Shyam Shetty and Another v. Rajendra Shankar Patil4).
33.Resultantly, the writ petition, being bereft of merit, is liable to be and is hereby dismissed.
34.There shall be no order asto costs.