Jaliwali Masjid And Arabi ... vs Haji Abdul Razzaque Haji Ahmed ...
2017 Latest Caselaw 6728 Bom

                                                          cra154-17.odt
           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      BENCH AT AURANGABAD
          CIVIL REVISION APPLICATION NO. 154 OF 2017
Jaliwali Masjid and Arbi Madarsa,           ... Applicant
Near   Rajkumar   Hotel,   Dadabhai   Cross 
J.P.Road, Andheri (West)
Mumbai 400 058
Through:
1     Haji Abdul Razzaque s/o Haji Ahmed 
      Chhapra, Age 67 years, 
      Occu: Business, 
      R/o Abdullah Manzil, Flat No.11,12
      J.P.Road, Andheri (West)
      Mumbai 400 058

2     Hasham Noor Mohammed Chowhan
      Age 50 years, Occu:Business,
      R/o Hawa Mahal, A/5, Gaothan Lane 
      No.1, Andheri (West), Mumbai-58

3     Mohammed Farooque Bismilla Khan,
      Age 45 years, Occu: Business,
      R/o Gaodevi Dongri,Khaleel Ahmed 
      Chawl, Andheri  (West),
      Mumbai 400 058

      VERSUS
1     Municipal Corporation of           ... Respondent
      Greater Mumbai,
      Through its Commissioner,K/W Ward,
      M.C.G.M. Paliram Path, Opp. BEST 
      Depot,Andheri (West),Mumbai 400058

2     Assistant Commissioner,
      Municipal Corporation of Greater
      Mumbai, K/W Ward, MCGM, 2nd Floor,
      Paliram Path, Opp. BEST Depot,
      Andheri (West), Mumbai 400 058,

3     Ward Executive Engineer,
      Municipal Corporation of Greater
      Mumbai, K/W Ward, 
      Paliram Path, Andheri (West),


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                                                                    cra154-17.odt
        Mumbai 400 058, 
4       Maharashtra State Board of Wakfs,
        Through its Chief Executive
        Officer, Panchakki,
        Aurangabad, M.S.

5       Mohammed Ali s/o Tayyab,                        ... Respondent
        Age 63 years, Occu: Business                        s
        154, Victoria Road, S.S. Marg,
        Byculla, Mumbai 400 027


Mr.S. S. Kazi, Advocate for the applicant.
Mr.R. N. Dhorde, Senior Advocate i/by Mr.A.K. Tiwari & 
Ms.Surekha Sonawane, Advocate for respondent Nos.1 to 
3
Mr. Y. B. Pathan, Advocate for respondent No.4
Mr. A. S. Bajaj, Advocate for respondent No.5

                             CORAM         : K. L. WADANE, J.

                             RESERVED ON   : 28.08.2017
                             PRONOUNCED ON : 04.09.2017

JUDGMENT:    

1. Present Revision Application is preferred by

the revision applicant against the common order dated

15.06.2017, passed below Exh.5 in Wakf Suit No.172 of

2016 and Wakf Suit No.175 of 2016, by which the

application for temporary injunction has been partly

allowed. Being aggrieved with the same, the original

plaintiffs in Wakf Suit No.172/2016 have preferred

this Revision.

2. Brief facts of the case may be stated as

follows:

cra154-17.odt (1) The applicant/plaintiff- Jaliwali Masjid and

Arbi Madarsa, is Wakf Institution, situated at J.P.

Road, Andheri (West), Mumbai. City Survey No.177,

having structure of Masjid therein, admeasuring

1201.30 sq. mtrs, to the extent of 728.79 sq. mtr. is

a 'suit property'.

(2) The applicant/plaintiff Jaliwali Masjid and

Arbi Madarsa, through its trustees filed Wakf Suit

No.172/2016 before the Wakf Tribunal, Aurangabad for

permanent injunction restraining respondent Nos.1 to 3

from causing any sort of interference in the peaceful

possession of the applicants/original Plaintiffs-

Jaliwali Masjid & Arbi Madarsa, over the suit

property.

(3) On or about 08.11.2016, the officers and

employees of respondent Nos. 1 to 3 tried to

dispossess the applicant from the suit property and

tried to demolish the suit property. When the

applicant resisted the illegal and unlawful attempt

of respondent Nos. 1 to 3, the office bearers and

employees of respondent Nos. 1 to 3 threatened the

applicant/ plaintiffs to demolish the suit property at

any time and further directed to handover the

cra154-17.odt possession of the suit property within eight days,

otherwise, they would demolish the structure by force

and dispossess the applicants at any point of time.

(4) It is the case of the applicant plaintiffs

that the structure of Jaliwali Masjid and Arbi Madarsa

is standing there since long, which is already

declared as Wakf property. The existence of structure

of the Masjid is since the time immemorial, which is

clear from the record of City Survey and also

Municipal record and the same is not unauthorized

construction. Respondent Nos. 1 to 3, under the

wrong impression, presumed that the Government

Resolution dated 5th May, 2011 issued as per the

directions of the Hon'ble Supreme Court in Special

Leave Petition (Civil) No. 8519/2006, dated 29.09.2009

is applicable to the suit property and are trying to

demolish the structure, owned and occupied by the

Masjid since the time immemorial.

(5) The Respondent Nos. 1 to 3 appeared and

contested the suit by filing written statement and

contended that the structure is falling in development

plan road as per Sanctioned Development Plan Road of

K/West Ward and therefore, the plaintiff is not

cra154-17.odt entitled for any relief and as per the sanctioned

development plan, they are intending to demolish the

structure over the suit property.

(6) During the pendency of the suit, respondent

No.5 i.e. plaintiff in Wakf Suit No.175/2016 filed

application for impleading him as party to the suit,

which was opposed by the present applicants and

despite pendency of the said application Exh.5,

Respondent No.5 filed Wakf Suit No.175/2016 before the

Wakf Tribunal, Aurangabad for declaration that the

notice dated 13.12.2016 is illegal, null and void and

for injunction, restraining respondent Nos. 1 and 2

from implementing the notice and from demolishing the

premises of the mosque- Abubakar Jaliwala Masjid and

also prayed perpetual injunction against defendant

Nos. 3 to 5 (present appellants/ original plaintiffs

in Wakf Suit No.172/2016) from causing obstruction and

interference to the management of the Wakf Institution.

(7) Along-with Wakf Suit No. 172/2016, the present

applicants/plaintiffs filed application for temporary

injunction, restraining respondent Nos.1 to 3 from

entering in the suit property and interfering in the

peaceful possession of the Wakf Institution and also

cra154-17.odt for restraining them from demolishing the existing

structure of the Masjid and Madarsha. Respondent No.5

also filed similar application in Wakf Suit No.

175/2016. In both the Suits, show cause notices were

issued to respondent Nos.1 to 3. During the pendency

of the above temporary injunction application Exh.5,

respondent No.5, filed pursis stating that he does not

want to press the application for temporary injunction

against the present applicants who were arrayed as

defendants Nos. 3 to 5.

(8) After hearing both the sides, the learned

Presiding Officer of the Wakf Tribunal has allowed

application Exh. 5 partly and restrained the

defendants Nos.1 to 3 in Wakf Suit No.172/2016 and

defendants Nos. 1 and 2 in Wakf Suit No. 175/2016 from

demolishing the entire religious structure of Abubakar

Jaliwala Masjid registered as the Wakf bearing No.

MSBW/MUM/285/2013, excluding the area of structure

approximately admeasuring 110 sq. mtrs. shown by hash

line in the Development Plan Map Exh. 30/1 and 34/1 in

Wakf Suit No.175/2016. It is also clarified that

defendants are not restrained from demolishing the

affected area approximately 110 square meter shown by

hash line in the Development Plan Map Exh. 30/1 and

cra154-17.odt 34/1 in Wakf Suit No.175/2016 which includes M.S.

Entrance Gate, Compound Wall and Shed structure

affected in t he road line of Municipal Road, known as

Dadabhai Road, Andheri West.

(9) Being aggrieved with the same, the

applicants/plaintiffs in Wakf Suti No. 712/2016 have

preferred this revision.

3. I have heard the arguments of Mr. S. S. Kazi,

learned counsel for the applicants/appellants, Mr.

Mr. R. N. Dhorde, learned senior counsel for

respondent Nos.1 to 3, Mr. Y. B. Pathan, learned

counsel for respondent No.4 and Mr. A. S. Bajaj,

learned for respondent No.5. I also perused the

documents on record and gone through the impugned

order.

4. At the outset, it is material to mention here

that Mr. Kazji the learned counsel for the

applicant argued that the applicants are the trustees

of the Wakf Institute namely Jaliwali Masjid and

Arbi Madarsa, which is a suit property. Respondent

Nos. 1 to 3 have not acquired the suit property after

following due process of law under the provisions of

the Land Acquisition Act or the Maharashtra Regional &

cra154-17.odt Town Planning Act. Without acquisition of the

aforesaid suit property, respondent Nos.1 to 3 are not

entitled to take possession or to obstruct the

peaceful possession of the applicants/plaintiffs over

the suit property. Mr. Kazi further argued that the

disputed structure is on the property owned by the

Wakf Institution and therefore, unless and until such

property is acquired by following due process of law,

the respondents are not authorized to take possession

of the same. Mr.Kazi further argued that the

Government Resolution dated 5th May, 2011 based upon

the directions given by the Hon'ble Supreme Court is

inapplicable to the disputed structure, since it is

not an illegal construction on a public road. Mr.

Kazi further argued that the property is owned by the

Wakf, controlled by respondent No.4. Prior permission

of the authority has not been obtained by respondent

Nos.1 to 3 to acquire the same. Guidelines issued in

the aforesaid Government Resolution are not applicable

to the suit property. Mr. Kazi further argued that the

plaintiffs have made out a case to show their

possession over the suit property and since respondent

Nos.1 to 3, through their employees and office bearers

are obstructing the peaceful possession of the

cra154-17.odt applicants over the suit property, the learned Wakf

Tribunal ought to have restrained respondent Nos.1 to

3 from demolishing, causing obstruction to the entire

suit property.

5. Mr. Kazi, the learned counsel for the

applicants relied upon observations of following

cases:

(1) 2012(5) Mh.L.J.120, Balbhim Shamrao Ghumare Vs.

State of Maharashtra and others.

(2) 2011(4) AIR Bom 196, Bhiwandi Nizampur City

Municipal Corporation vs. Vikas Kashinath Patil

and ors.

(3) (2005) AIR (SC)104, Maharwal Khewaji Trust Vs.

Baldev Das

(4) 2010 (1) LJSOFT 55 Smt.Indirabai Bhalchandra

Bhajekar Vs. Pune Municipal Corporation and anr.

(5) 1965 Mh. L.J.105, Poona City Municipal Corporation

Vs. Dattatraya Nagem Deodhar,

(6) AIR 1976 Supreme Court 1569 Syed Mohd Salie Labbi

(Dead) By L.Rs. Vs. Mohd. Hanifa (Dead) by L.Rs.

cra154-17.odt

6. As against this, Mr. Dhorde, the learned senior

counsel appearing for respondent Nos. 1 to 3 relied on

the observations of following cases:

(1) 2008 (3) All MR 269, Kalyan Dombivli Municipal

Corporation Vs. Prakash Muttha

(2) (2009) 3 Supreme Court Cases 432, Prakash

Harischandra Muranjan Vs. Mumbai Metropolitan

Regional Development Authority and another.

(3) 2005(3) ALL MR 218 Bales Sardara Paracha Vs. The

Municipal Corporation of Greater Bombay and anr.

(4) 2015 (6) Mh. L.J. 262, Arihant Construction Vs.

Subhash K. Barlota and others.

(5) Judgment of this Court in First Appeal No.

572/2013 in case of M/s Akash Impex Vs. Municipal

Corporation of Greater Bombay.

(6) Judgment of this Court in PIL No. 104/2010,

Society for Fast Justice Vs. The State of

Maharashtra.

7. Mr. Dhorde, the learned Senior counsel argued

that the present applicants/plaintiffs have no

concerned with the Wakf Institution -Abubakar Jaliwala

cra154-17.odt Masjid which is registered as the Wakf bearing No.

MSBW/MUM/285/2013 in City Survey No. 177. Mr. Dhorde,

the learned Senior counsel further submitted that the

present applicants/plaintiffs have no concerned with

the Wakf institution since respondent No.5 is claiming

to be Mutawali of the said trust and has also filed

Wakf suit to that effect bearing Wakf Suit No.

175/2016. Mr. Dhorde further submitted that during

the pendency of the Application Exh.5 in Suit No.

175/2016, the plaintiff/ respondent No.5 in the

present proceeding has not pressed the application

for temporary injunction. In fact, during the

pendency of the proceeding, he has given no objection

to demolish the portion which falls under the

Development Plan Road as per Sanctioned Development

plan of K/W ward. Mr, Dhorde, the learned senior

counsel further argued that before institution of the

suit, no notice as required under the provisions of

the law was issued to Respondent Nos. 1 to 3.

Therefore, the suit is not maintainable. The learned

senior counsel further submitted that the respondents

authority as well as police personnels have conducted

survey to find out which area and construction falls

under the development plan road as per the directions

cra154-17.odt given by the Hon'ble Supreme Court in Special Leave

Petition (Civil) No. 8519/2006, and pursuant G.R.

issued by the State Government. At that time,

notices were issued to all the concerned and there

objections were also heard and after hearing all the

interested persons, it was concluded that the

disputed structure falls under 'B" Category.

Respondent No.5 made representation to substitute the

Category from "B" to "A". However, finally, it was

concluded that the disputed structure falls under

Category "B".

8. Considering the arguments advanced by both the

sides, it is material to note that the present

plaintiffs have filed Wakf Suit No. 172/2016 and the

respondent No.5 filed Wakf Suit No.175/2016. Both of

them are claiming to be trustees of the Wakf

Institution, registered as the Wakf bearing

registration No.MSBW/MUM/285/2013. However,considering

the nature of the present proceedings and the reliefs

claimed by the revision applicants, I am of the

opinion that it is not necessary to enter into the

controversy of the claims/reliefs claimed by the

respective plaintiffs in both the Suits. That

controversy has to be ultimately resolved by the Wakf

cra154-17.odt Tribunal. Similarly, whether the suit is maintainable

or not is also to be decided by the Wakf Tribunal.

Therefore, limited controversy arises between the

parties in the present proceeding is whether the

disputed structure as shown by hash line in the

Development Plan Map Exh. 30/1 and 34/1 in Wakf Suit

No.175/2016 is a legal construction, constructed after

obtaining proper permission from the respondents.

9. From the record, no where it is revealed that

such structure was constructed by the Wakf Institution

after obtaining permission from respondent No.1. Mr.

Dhorde, the learned Senior Counsel, by referring

certain documents, submitted that the plaintiffs/

applicants have suppressed the material fact about

the public notice and hearing of the objection about

the construction which falls under the Development

Plan Road. Plaintiffs have raised objection so also

notices were issued to respondent No.4 and considering

the objections raised by the concerned persons, the

respondents have determined the construction in Class

"B" category.

10. Considering the submissions made by Mr. Dhorde

the learned senior counsel and upon scrutiny of the

cra154-17.odt documents, it appears that the Hon'ble Supreme court

in Special Leave to Appeal (Civil) No.8519/2006,

directed all the States and the Union Territories

that henceforth, no unauthorized construction shall

be carried or permitted in the name of temple, church,

mosque or gurudwara etc. on public street/park or

other public places etc. Further, it is also

directed that for unauthorized construction of

religious nature which has already taken place, the

State governments/union territories shall review the

same on a case by case basis and take appropriate

steps as expeditiously as possible.

11. This Court, in its Ordinary Original Civil

Jurisdiction, while considering the Public Interest

Litigation No.104/2010, has held that the State and

planning authority can also demolish the illegal

religious structures made on private properties in

accordance with law.

12. It reveals from the record that in view of the

order dated 29.09.2009 of the Hon'ble Supreme court,

the State of Maharashtra issued a Government

Resolution dated 5th May, 2011 and thereby constituted

various level committee to identify the illegal

cra154-17.odt religious structures. In pursuance to the directions

issued by the Hon'ble Supreme Court and the directions

in the Government Resolution, the Officials of the

Municipal Corporation along-with Police authority,

jointly inspected the illegally constructed religious

structures and prepared a report on 01.11.2011. In the

said report, premises of present Masjid is at Serial

No.24, wherein it is specifically stated that due to

the illegal construction of "wajuh place" the footpath

is completely closed down. Further, it reveals from

the record that the Municipal Corporation has decided

to give hearing to all the concerned persons of such

religious structure and after hearing the concerned

persons, report is prepared and the property involved

in the present matter is mentioned at Serial No.33 and

classified as "B" Category. From the communication

dated 23rd April, 2015, it reveals that again

opportunity of being heard was given to the interested

persons and after considering their objections,

encroachments falling in the development plan road

were classified.

13. It is material to note that the present

Plaintiff no.1 has submitted its objection on 4th

August, 2011. Further it reveals that the present

cra154-17.odt plaintiffs, along-with their Advocate were present at

the time of hearing and it is very much clear from the

Roznama dated 04.08.2015. It means that the plaitniffs

were adequately heard and represented in the

proceedings and after hearing was given to the

concerned persons, the disputed structure is classified

as "B" category. From the record, it is seen that

notice was also issued to Chief Executive Officer of

respondent No.4 Wakf Board. The notice was duly served

but he remained absent. Therefore now he cannot

agitate any ground that opportunity of hearing was

not given to him.

14. It is material to note that the order of

classification of structure under "B" category is not

challenged either by the present applicants/plaintiffs

or the plaitniff in Wakf Suit No.175/2016. Therefore,

that order attains finality. It is surprising to note

that plaintiffs/applicants have suppressed this

material fact, due to which, the plaintiffs are not

entitled for any equitable relief in regard to the

structure which is shown to be falling within the

development plan road.

15. Further, it is material to note that the

cra154-17.odt Mutawali of Abubakar Jaliwala Masjid, i.e. respondent

No.5 submitted Application below Exh.45 before the

learned Wakf Tribunal on 19.04.2017, wherein, he has

specifically admitted that the area demarcated for

the road by the Municipal Corporation is not the area

that he had given to the Wakf. That area is not a Wakf

land as per the map submitted to Wakf Board alongwith

the Wakf Deed at the time of registration.

16. On 5th November, 2016, the Government of

Maharashtra issued an order, thereby directing all the

concerned authorities to remove unauthorized

religious structure on or before structure on or

before 17.11.2017. This order, passed by the State

Government, is based upon the directions given by this

Court in PIL No. 104 of 2010.

17. So, looking to the entire documents on record,

it appears that the action initiated by respondent

Nos. 1 to 3 is proper, legal and based upon the

directions given by the Hon'ble Supreme court as well

as this Court and pursuant Government Resolution dated

5th May, 2011. On the other hand, the present

applicants/plaintiffs have failed to establish that

the disputed structure as carved out by the learned

cra154-17.odt Wakf Tribunal, which falls within the Development

Plan road, is a property belonging to the plaintiffs

and it is their property or the Wakf property.

18. Mr. Kazi, the learned counsel appearing for the

applicants/plaintiffs was repeatedly harping upon the

fact that the land is not acquired nor compensation is

paid. For this purpose, it is material to note that

there is dispute inter se between to two parties i.e.

plaintiffs in Wakf Suit No. 172/2016 and Plaintiff in

Wakf Suit No. 175/2016 and their claims are pending

for adjudication. In-spite of that, Mr.Dhorde, the

learned Senior counsel has submitted that pursuant to

the demolishing of structure to the extent of approx.

110 sq. mtr., the Municipal Corporation granted TDR

to that effect to respondent No.5 and the person or

party succeed in the litigation will get the benefit

of TDR. Therefore, from the record, it is crystal

clear that the action of respondent Nos.1 to 3 is

legal and proper and is based upon the directions

given by the Hon'ble Supreme Court as well as this

Court and pursuant Government Resolution issued by

the Government.

19. All the above observations are made prima

cra154-17.odt facie for deciding the present revision appliation

and the learned Tribunal shall not get influenced by

the above observations at the time of final disposal

of the suits filed by the present applicants as well

as respondent No.5.

20. I have gone through the reasons recorded by the

learned Wakf Tribunal. I do not find any illegality,

impropriety or incorrectness with the impugned

order. Consequently there is no merit or substance in

the Revision and therefore, it is liable to be

rejected and it is accordingly rejected. No order as

to costs.

At this stage, the learned counsel for the applicants submits that the earlier statement made by the learned counsel for the respondents may be continued for some time, as the applicants want to challenge the order passed by this Court. Learned counsel for the respondents has strongly opposed the prayer.

Considering the reasoned order passed by this Court today, I find no reason to grant any interim relief. Hence the prayer is rejected. Authenticated copy be given.

(K. L. WADANE, J.) JPC