Haji Gayyur Hussain vs State Of Chhattisgarh
2021 Latest Caselaw 2766 Chatt

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                                                                         NAFR
               HIGH COURT OF CHHATTISGARH, BILASPUR

                           W.P.(C) No. 4201 of 2021

1.    Sayyed Maqbool Ali, S/o. Sayyel Maqsood Ali, Aged About 44 Years
      R/o Behind Sunni Hussani Maszid, Taiba Chowk, Talapara, Police
      Station Civil Lines, Bilaspur Chhattisgarh., District : Bilaspur,
      Chhattisgarh

2.    Mohammad Arafat Danish S/o Mohammad Mansur Ali Aged About 26
      Years    President    Of   Faizane    Maqdoom     Ashraf     Tahrik   (An
      Unregistered Society), R/o Marimai Road, KGN Chowk, Talapara,
      P.S. Civil Lines, District Bilaspur Chhattisgarh., District : Bilaspur,
      Chhattisgarh

                                                              ---- Petitioners

                                   Versus

1.    State Of Chhattisgarh Through Its Chief Secretary, Mantralaya,
      Mahanadi Bhawan, Atal Nagar, Nawa Raipur, District Raipur
      Chhattisgarh.,

2.    The Secretary Department Of Home, Mantralaya, Mahanadi Bhawan
      Atal Nagar, Nawa Raipur, District Raipur Chhattisgarh.

3.    Collector Bilaspur, District Bilaspur Chhattisgarh.

4.    Superintendent Of Police Bilaspur, District Bilaspur Chhattisgarh.

5.    Chhattisgarh State Waqf Board Through Chief Executive Officer,
      Near Dr. Bhimrao Ambedkar Statue, Collectorate Chowk, Raipur,
      District Raipur Chhattisgarh.

                                                            ---- Respondents

Along with

W.P.(C) No. 4202 of 2021 Haji Gayyur Hussain, S/o Shri Murtija Hussain, Aged About 64 Years President, Uski Den Committee, Satyam Chowk, Civil Line, Bilaspur, District Bilaspur (CG) R/o Behind Masoom Hospital, Tulsi Nagar, Talapara, Bilaspur, District Bilaspur Chhattisgarh

---- Petitioner

Versus

1. State Of Chhattisgarh, Through Secretary, Department Of Scheduled Caste And Scheduled Tribe Development, Other Backward Class And Minority Development And Cooperative Department Mantralaya, Mahanadi, Bhawan, Atal Nagar, Nawa Raipur, District Raipur Chhattisgarh,

2. C.G. State Wakf Board, Through Chief Executive Officer, In Front Of Dr. Bheemrao Ambedkar Statue, Collectorate Chowk, Raipur, District Raipur Chhattisgarh.

3. Collector, District Bilaspur Chhattisgarh.

.....Respondents.

For Petitioners : Mr. Vivek Kumar Shrivastava & Mr. Rohit Sharma, Advocates For State/respondent : Mr. S.C. Verma, Advocate General with Mr. Alok Bukshy, Additional A.G.

For respondent No.5 (in W.P.(C): Mr. Anup Majumdar, Advocate 4201/21 & Respondent No.2 in W.P.(C) No. 4202/21 For Intervener : Mr. Atul Kesharwani, Advocate

Hon'ble Shri Justice Rajendra Chandra Singh Samant

Order On Board

18/10/2021

1. A common order is passed on these petitions as the issue raised in

both the petitions and relief claimed is same.

2. Both the petitions have been filed by the petitioner being aggrieved

by the order passed by the respondent No.3 on the basis of the

advice given by the C.G. State Waqf Board.

3. It is submitted by the learned counsel for the petitioner in W.P.(C)

No.4201 of 2021 that an application was moved praying for

permission to take out procession on the event of birth day of

Prophet Mohammad. This application was rejected by the Collector

Bilaspur/respondent No.3 on the ground that the Covid-19 situation is

continuing and that there is an advice from the C.G. State Waqf

Board by letter dated 11.10.2021 (P-2) that the permission for such

procession should not be granted. It is submitted that the Waqf Board

has no such authority to issue such kind of advisory. Section 32 of

the Waqf Act, 1995 is very specific with respect to powers and

functions of Waqf Board, which does not include the power of

issuance of such advisory to the District Collector. It is submitted that

in the recent past, other communities were granted permission for

celebrating their festivals. Therefore, it is clearly discriminatory with

the community of the petitioners and that amounts to violation of

Article 19 and 25 of the Constitution of India. It is further submitted by

the counsel for the petitioner that birth of Prophet Mohd. is being

celebrated since time immemorial, which has become a custom and

protection has been given under Article 25 of the Constitution of

India, to such custom, therefore, the impugned order is not

sustainable.

4. Counsel for the petitioner in W.P.(C) NO. 4202 of 2021 makes

submissions similarly and submits that clearly the order of the

Collector has been passed on the basis of the advice given by the

Waqf Board, which is not an authority for giving such advice.

Therefore, the impugned order and the advise given by the Waqf

Board be quashed and the community of the petitioners be permitted

to take out procession on 19th of October, 2021 in the event of Id

Milad-Un-Nabi.

5. Learned Advocate General appearing for the State and Collector,

Bilaspur vehemently opposes the submissions made by the counsel

for the petitioners in both the cases. Referring to the letter dated

11.10.2021, by the Waqf Board to District Collector and Additional

Commissioner of Waqf, it is submitted that the Waqf Board has very

clearly advised that havoc of covid-19 is continuing, therefore, it is

necessary to take protective measure to keep the health conditions

of the individuals in the district better. It is on this ground, it is advised

that on the event of Id Milad-Un-Nabi, District Administration should

not permit taking out of procession and any other public activity. It is

submitted that the Waqf Board has such authority to issue such

advisory under Section 25 of the Waqf Act, 1995, which empowers it

to take measures for protection of waqf property. Therefore, there is

nothing wrong with the advisory issued by the Waqf Board.

6. It is further submitted that the District Administration is not permitting

other communities in their respective festivals for public gathering

and taking out of procession. A copy of order dated 07.09.2021 has

been supplied for the perusal of this Court, which is with respect to

festival of Ganesh Utsava, in which restrictions have been imposed

with respect to the celebrating that festival. Reference has also been

made of the order dated 17.10.2021 passed by the District Collector,

Raipur in which there is specific direction that there is no permission

for taking out procession convening any gathering, rallies, bike rally

etc. The order has been passed by the Collector, Bilaspur similarly

on 17.10.2021, which is numbered as 5843/2021. Copy of the same

is supplied for perusal. It is also submitted that no such permission

was granted to the other community in the matter of celebration of

Durga Utsava and Navratri, therefore, by not granting permission to

take out procession to the community of the petitioner, the

administration has not made any discrimination. It is only Covid

protocol, which is being strictly followed for the health and safety of

the residents of the concerned cities. It is also submitted that in case

any permission is granted to the community of the petitioners for

taking out procession etc. that will amount to discrimination against

the other communities, who were not granted such permission.

Relying on the judgment of Supreme Court in case of Census

Commissioner & Others. Vs. R. Krishnamurthy, reported in (2015)

2 SCC 796, it is submitted that the Supreme Court has considered

the question regarding issuance of mandamus by a High Court in

which it was held that the Court can not and should not outstep its

limit and tinker with the policy decision of the executive functionary

of the State, therefore, present petitions are without any substance

which may be dismissed.

7. Learned counsel for the C.G. State Waqf Board opposes the petition

and the submissions made in this respect. It is submitted that the

Waqf Board has authority to issue such advisory as Annexure P-2

under Section 25 of the Waqf Act, 1995. In such a case, protection of

waqf property is involved. It is also submitted that taking out a

procession is not a necessary ritual. Meaning of the words Milad-Un-

Nabi is about reading the couplets of Quran, which means reading,

hoisting a flag of Islam and giving religious speech. There is no such

meaning present in this word that taking out procession is a

necessary ritual, therefore, both the petitions are without any

substance which may be dismissed.

8. Learned counsel for the intervener makes submission in support of

the counsel for the petitioners and submits that in the neighbouring

State of Madhya Pradesh, the administration has granted permission

for taking out procession on the event of Id-Milad-Un-Nabi. Referring

to the Annexure A-5, it is submitted that the District Administration of

Bilaspur granted permission by order dated 07.10.2021 for

organizing programme of Garba, in which 200 persons were

permitted to participate, therefore, the order restricting the community

of the petitioners is discriminatory. Hence, relief be granted to the

petitioners.

9. In reply, it is submitted by the counsel for the petitioners that in the

State of C.G. itself, the administration of the North Bastar Kanker has

granted permission for taking out such procession. Hence, it is

difficult to understand why permission has not been granted to the

petitioners' community for taking out a procession on such event.

Hence, the discrimination is very clear and loud. Prayer has been

made to pass appropriate order.

10. Considered on the submissions. On perusal of the orders passed by

the Collector, Bilaspur and Collector, Raipur with respect to the

direction for celebrating Id-Milad-Un-Nabi, it is found that there is

clearly no permission for taking out procession. The order does not

mention of the advisory of the Board. There is only one example

cited of the District North Bastar Kanker, where permission has been

granted. The impugned orders themselves are very clear that for the

purpose of containing the spread of Corona virus in festivals

directions have been issued in which there is no permission for

taking out any procession. The situation of Corona may vary from

place to place, the assessment of such situation is made by the

District administration and no inference can be drawn regarding

similarity of situation on such premise that one of the District of this

State or the Districts of neighbouring State have granted permission

for taking out procession. There is no other example cited by the

petitioners or interveners supporting the petitions regarding grant of

permission of taking out of procession of any other district of State of

Chhattisgarh.

11. The submissions of the counsel for the intervener that the district

administration Bilaspur had granted permission for gathering in

organizing Garba by the concerned parties is taken into

consideration. It is to be noted that Garba is not organized on roads

whereas any procession moves on roads. The community of the

petitioners have been granted permission to celebrate the festival in

their mosques, where the members of the community can gather as

per permission granted to them. Hence, I am of this view that the

order of the District Collector, Bilaspur placing restrictions in the

matter of celebration of festival of Id-Milad-Un-Nabi and also by not

granting permission for taking out procession on such event is not a

discriminatory order. The Supreme Court has held in the case of

Census Commissioner (Supra) in paragraph -31, which is as follows :-

"31. In M.P. Oil Extraction V. State of M.P., a two-Judge Bench opined that:

"41.......... The executive authority of the State must be held to be within its competence to frame a policy for the administration of the State. Unless the policy framed is absolutely capricious and, not being informed by any reason whatsoever, can be clearly held to be arbitrary and founded on mere ipse dixit of the executive functionaries thereby offending Article 14 of the Constitution or such policy offends other constitutional provisions or comes into conflict with any statutory provision, the Court cannot and should not outstep its limit and tinker with the policy decision of the executive functionary of the State."

12. It is for the State authorities to consider on the situation and make

assessment of the conditions which may affect the health and well

being of the people living in the district and the State. As the State

Government has considered and decided that taking out of

procession would be detrimental to the efforts of the district

administration in keeping the Corona virus pandemic in control,

therefore, I am of this view that there is no entitlement for grant of

any relief in both the petitions either interim or final.

13. Hence, on the basis of the forgoing discussions made here-in-above,

both the petitions are dismissed and disposed off.

C.C. today.

Sd/-

(Rajendra Chandra Singh Samant) Judge Balram