Gujarat High Court
Pandya Manishanker Dhanjibhai vs State Of Gujarat on 8 March, 2021
Bench: Vineet Kothari, Gita Gopi
C/LPA/1055/2016 CAV JUDGMENT DT 8.3.21
PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar
In Re: Kabristan (Graveyard) Bhavnagar Dispute
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
1. R/LETTERS PATENT APPEAL NO. 1055 of 2016
In
R/SPECIAL CIVIL APPLICATION NO. 12594 of 2002
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2016
In
R/LETTERS PATENT APPEAL NO. 1055 of 2016
With
2. R/LETTERS PATENT APPEAL NO. 1516 of 2017
In
SPECIAL CIVIL APPLICATION NO. 12594 of 2002
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE VINEET KOTHARI
and
HONOURABLE MS. JUSTICE GITA GOPI
==================================================================
1 Whether Reporters of Local Papers may be allowed to Yes
see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the Yes
judgment ?
4 Whether this case involves a substantial question of law Yes
as to the interpretation of the Constitution of India or
any order made thereunder ?
==================================================================
R/LETTERS PATENT APPEAL NO. 1055 of 2016
1. PANDYA MANISHANKER DHANJIBHAI
2. KUMARBHAI JAISHUKHBHAI MEHTA
C/LPA/1055/2016 CAV JUDGMENT DT 8.3.21
PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar
In Re: Kabristan (Graveyard) Bhavnagar Dispute
3. DAWOOD ALI RAJAB ALI
4. MAHESHKUMAR RATANLAL JODHWANI
5. RATANLAL NAVMAL JODHWANI
6. ABDUL KHAYYUM ISMAILBHAI
7. USMAN ABDYUL KARIM
8. DIN MOHAMED MOHAMED ISAAK PATHAN
9. REHMAN PIRABHAI SOLANKI
10. MOHAMED KHALID KASAMBHAI
11. SHAIK MOHAMED RAFEEQ MOHAMED HUSSAINBHAI
12. IQBALBHAI ISMAILBHAI LOHIA
13. INTAKHAB MUMTAZKHAN
14. FAROOQBHAI HUSSAINBHAI SAYED
15. SALIMBHAI ISABHAI DARAYA
16. SALIMBHAI ISABHAI DARAYA
17. YUNUSBHAI BACHUBHAI SHAIKH
18. YUSUFBHAI ABDUL REHMAN
19. SHAIKH USMAN DAWOOD
20. IBOOBHAI ISMAILBHAI MOMIN
21. RAJAK BAIG ANWAR BAIG
22. ABDUL MAJEED BABUBHAI SHAIKH
23. YUSUFBHAI SULTHANBHAI SHAIKH
24. GAFARBHAI AHMEDBHAI MEHTAR
25. FATANI ISMAIL IBRAHIM
26. SIRAJ AHMED DOST MOHAMED ANSARI
27. RAFEEQ YUSUFBHAI GOGHARI
28. YUNUSBHAI YUSUFBHAI GOGHARI
29. RAHIMBHAI BACHUBHAI
30. ABDUL RAZAK IBRAHIMBHAI
31. RAMESHCHANDRA JAYANTILAL MEHTA
32. ABDUL RAJAK IBRAHIMBHAI
33. ANILKUMAR POPATBHAI GAUTAMI
34. ABDUL WAHAB SATTARBHAI DASARAI
35. ISMAILBHAI USMANBHAI GOGHARI
C/LPA/1055/2016 CAV JUDGMENT DT 8.3.21
PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar
In Re: Kabristan (Graveyard) Bhavnagar Dispute
36. RAFEEQBHAI USMANBHAI GOGHARI
37. FAROOQ MOHAMEDBHAI MIRANI
38. ABDUL KADAR HAJI MOHAMED
39. PRASHANT RAMESHBHAI MEHTA
40. SABIRBHAI HASSANBHAI SHAIKH
41. HARESH MANSUKHLAL RAJYAGURU
42. BHARATKUMAR V KAPASI
Versus
1. STATE OF GUJARAT
2. COLLECTOR
3. CITY MAMLATDAR
4. CHANCHIVAD MEMON JAMAT PUBLIC TRUST,REGI.NO.B/15
5. AMDUL MAJID KASAMBHAI MEMON
6. ANWAR HAJI HUSENBHAI DORDIWALA
7. FARUKBHAI ALARAKHABHAI ADHIA
8. UMMARBHAI ABUBAKARBHAI TINWALA
9. IKBALBHAI AARAB
10. AHMEDBHAI YUSUFBHAI LOTA
11. SUNNI MUSLIM SAMAJ,BHAVNAGAR THRO ITS MEMBER
============================================================
Appearance:
LETTERS PATENT APPEAL No. 1055 OF 2016 - Pandya Manishanker
Dhanjibhai & 41 Others v. State of Gujarat & 10 Others
MR MIHIR THAKORE, Senior Counsel with MR SANDIP SINGHI with MR
SHANIK BHATT with MS ANVI MAJMUDAR for M/s SINGHI AND CO for the
MR MEET THAKKAR, Assistant Government Pleader for Respondent No.1
MR M.T.M. HAKIM for MR SAQUIB S ANSARI for Respondent Nos.5 to 10
MR A.S. ASTHAVADI for Respondent No.11
C/LPA/1055/2016 CAV JUDGMENT DT 8.3.21
PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar
In Re: Kabristan (Graveyard) Bhavnagar Dispute
LETTERS PATENT APPEAL No. 1516 OF 2017 - Sunni Muslim Samaj,
Bhavnagar v. Pandya Manishanker Dhanjibhai & 51 Others
MR A.S. ASTHAVADI for the Appellants
MR MEET THAKKAR, Assistant Government Pleader for Respondent Nos.43,
MR MIHIR THAKORE, Senior Counsel with MR SANDIP SINGHI with MR
SHANIK BHATT with MS ANVI MAJMUDAR for M/s SINGHI AND CO for
MR M.T.M. HAKIM for MR SAQUIB S ANSARI for Respondent Nos.47, 48 to
============================================================
CORAM: HONOURABLE DR. JUSTICE VINEET KOTHARI
and
HONOURABLE MS. JUSTICE GITA GOPI
Date : 8th March 2021
CAV JUDGMENT
(PER : HONOURABLE DR. JUSTICE VINEET KOTHARI)
1. Present Intra Court Appeal has been filed by Pandya
Manishanker Dhanjibhai and 41 others claiming to be the
Tenants of Respondent No.4 Ghanchivad Memon Jamat (later on
registered as a Public Trust under the Bombay Public Trusts Act),
having its Registration No.B/15, Bhavnagar in the shops located
at 'Old Kabristan' in Bhavnagar, situated at Survey Nos.7617 to
7622 and 7630 in the City Survey Ward No.3 at Navapura,
Bhavnagar. The Appellants - Petitioners are aggrieved by the
dismissal of their Special Civil Application No.12594 of 2002 by
C/LPA/1055/2016 CAV JUDGMENT DT 8.3.21
PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar
In Re: Kabristan (Graveyard) Bhavnagar Dispute
the learned Single Judge of this Court, vide order dated 23.9.2016
mainly on the ground of their locus standi to maintain such writ
petition, suppression of material facts from the Court and
pendency of Civil Suits filed by them which were pending trial in
the Subordinate Courts.
2. It may be stated, at the outset, here that Respondent No.4,
the Trust has already filed a Regular Civil Suit No.13 of 1998 in
the Court of Civil Judge (Senior Division), Bhavnagar -
Ghanchivad Memon Jamat vs. State of Gujarat and others for
Declaration and Injunction for almost the same relief, for which
the present litigation in writ jurisdiction of this Court has been
initiated by the Tenants of the shops constructed presumably by
the Trust itself and in the said suit, the Trust has claimed the right
of declaration over the said property for the aforesaid Survey
numbers and also injunction against the State Authorities not to
dispossess the Plaintiff from the said land in question. It was
brought to our notice that the said suit was returned under Order
7 Rule 10 of the Civil Procedure Code, 1908, vide order dated
18.12.2018 passed by the 5th Additional Senior Civil Judge,
Bhavnagar for presenting the said suit before the Waqf Board /
Tribunal, Gandhinagar, Gujarat in view of the amendment of
C/LPA/1055/2016 CAV JUDGMENT DT 8.3.21
PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar
In Re: Kabristan (Graveyard) Bhavnagar Dispute
Section 83 of the Waqf Act, 1995 in 2013, whereby Section 83 of
the Waqf Act, 1995 providing for Constitution of Waqf Tribunal
under the Waqf Act, 1995 was amended to include also the
'dispute with regard to eviction of a tenant or determination of
rights and obligations of the lessor and the lessee of waqf
property' besides the earlier general powers to determine any
dispute, question or other matter relating to a waqf or waqf
property under the said Act. It was further stated before us by
learned Senior Counsel Mr.Mihir Thakore that a Review Petition
has been filed before the said Trial Court of 5 th Additional Senior
Civil Judge, Bhavnagar, seeking a review / modification of the
said order dated 18.12.2018 with a prayer to the said Court to
itself transfer the pending trial of the said Suit No.13 of 1998 to
the Waqf Tribunal.
3. Though, during the course of arguments on behalf of the
Appellants - Tenants represented by Mr. Mihir Thakore, the
learned Senior Counsel, we expressed a doubt and a question to
the learned counsel for the Appellants that if the question of
Ownership or Title of the Trust itself was the burden of this Writ
Petitioners and Tenants were only a front used by the Trust to run
this litigation in writ jurisdiction parallel to civil suit proceedings
C/LPA/1055/2016 CAV JUDGMENT DT 8.3.21
PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar
In Re: Kabristan (Graveyard) Bhavnagar Dispute
and only the Trust was sought to be divested of its such right by
the order of the District Collector, Bhavnagar dated 4.2.1990, the
Tenants may not have locus standi to challenge the same as they
cannot claim to be the owners of the land in question which is
said to have been allotted in favour of the Trust by the erstwhile
State of Bhavnagar way back in 1895 as Kabristan (Graveyard)
and since the said relief could be claimed and has been claimed
by the Trust itself in the Civil Suit No.13 of 1998, as aforesaid,
therefore, whether the Tenants of the Trust should be allowed at
all to invoke the writ jurisdiction of this Court under Article 226 of
the Constitution of India or not.
4. The said query of the Court on the preliminary ground of
maintainability was sought to be answered by the learned Senior
Counsel Mr. Mihir Thakore with the submission that the Trust
was served with Notice dated 24.12.2002 by the City Mamlatdar,
Bhavnagar to hand over the possession of the land in question to
the said Authority, failing which they will remove the
unauthorised construction, hindrance, etc. and therefore, since
the Tenants were occupying the shops leased out to them by the
said Trust, they were likely to be affected by this and therefore,
they got the cause of action to invoke the writ jurisdiction of this
C/LPA/1055/2016 CAV JUDGMENT DT 8.3.21
PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar
In Re: Kabristan (Graveyard) Bhavnagar Dispute
Court, notwithstanding the pendency of Civil Suit No.13 of 1998
filed by the Trust itself in the Trial Court of Bhavnagar.
5. The grant of land in favour of Ghanchivad Memon Jamat is
said to have been made in 1895 by the State of Bhavnagar and
after Independence in 1947 it is said to have been fortified further
by a Sanad issued in favour of the said Trust in the year 1965
under Section 133 of the Bombay Land Revenue Code, 1879 in
prescribed of Schedule H of the said Land Revenue Code after
holding an inquiry under Section 37(2) of the Land Revenue
Code. But the problem started when the District Collector,
Bhavnagar initiated proceedings for resumption of the said land
in question and passed an order on 4.2.1993 on the ground that
the land in question was granted to the said Trust and it could be
used only as a Graveyard or Kabristan, but since the same was
used for the commercial purposes also, by constructing the shops
owned by them which were rented out to various Tenants as per
the Government Resolution dated 12.9.1989, the same amounted
to violation of the conditions and therefore, the land in question
deserved to be resumed and vested in the State. The relevant
portion of the order passed by the District Collector, Bhavnagar
Mr. Sanjay Gupta on 4.2.1993, is quoted hereinbelow for ready
C/LPA/1055/2016 CAV JUDGMENT DT 8.3.21
PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar
In Re: Kabristan (Graveyard) Bhavnagar Dispute
reference:
"On examining the evidences and the proofs produced
in this matter, it is evident that the property bearing
Survey / Tika No.36/1 has been registered as
graveyard in the year 1895 and the verification of the
rights has been done in the year 1966, which is situated
in City Survey No.7619/7630, wherein also, this land is
mentioned as the graveyard land, where, it has been
registered as Ganchiwad Masjid and Kabristan. As
per Section 38 of the Land Revenue Code and Rule
17(1) thereof, for earmarking the land for graveyard or
crematorium, the Collector is the competent officer.
Section 38 itself clearly lays down that the land
earmarked for the public purpose shall not be used
for any other purpose. In this case, it is revealed that
the shops are constructed. Further, as per the
Government Resolution dated 12.09.1989, as is
resolved, it is necessary that such a land earmarked is
used for the purpose of cremation, burial place or
graveyard. Further, with a view to see that such a land
is used by the general public with harmony, without
any dispute and that no person or the institution uses
such an earmarked land for any other purpose or
encroaches the same and with a view to see that no
unnecessary harassment is caused to the people of the
concerned community and their religious sentiments
are not offended and to see that the peace prevails.
C/LPA/1055/2016 CAV JUDGMENT DT 8.3.21
PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar
In Re: Kabristan (Graveyard) Bhavnagar Dispute
However, if, in case, there arises any such disputes,
then, as per the current instructions, which are in
force, a committee of the local persons can be made,
subject to certain terms and conditions, and they can
be handed over the administration of such a land and
in my opinion, the same has to be applied in this case.
Thus, in regard to the property / land situated in Ward
No.3, bearing City Survey No.7619 and 7630 of
Bhavnagar City, following final order is passed.
ORDER:
Land situated in Ward No.3, bearing City Survey
No.7619 and 7630 of Bhavnagar City, is ordered to be
taken back in favour of the State and with a view to
see that this land is being used only for the purpose
of graveyard, as per the provisions of the Government
Resolution, bearing No.JMN/3989/539/G, dated
12.09.1989, necessary procedure is ordered to be
initiated immediately and to be completed within 30
days by the City Mamlatdar.
Today, i.e. on 04.02.1993, pronounced with my
signature and seal. To be circulated.
Certified: (Sanjay Gupta)
Chitnish to Collector Collector
Bhavnagar District, Bhavnagar"
6. The Government Resolution dated 12.9.1989 referred to in
the said order of District Collector dated 4.2.1993 is also quoted
C/LPA/1055/2016 CAV JUDGMENT DT 8.3.21
PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar
In Re: Kabristan (Graveyard) Bhavnagar Dispute
below for ready reference:
"સમશાન માટે , મૃતદે હને દફનાવવા માટે સમાિધસથળ તથા કબસતાન માટે નીમ થયેલી
સરકારી જમીનનો વહીવટ સથાિનક લોકોની સિમિતને સોપવા બાબત.
ગુજરાત સરકાર,
મહેસૂલ િવભાગ,
ઠરાવ કરમાંક : જમન-૩૯૮૯-મ૩૯-ગ,
સિચવાલય, ગાંધીનગર, તા.૧૨-૦૯-૧૯૮૯.
વં ચાણમાં લીધા :-
(૧) મહે સૂલ િવભાગનો પિરપત કમાંક : જમન-૩૯૮૭-૩૫૭૫-ગ, તા.૦૮-૦૯/૧૯૮૭.
(૨) મહે સૂલ િવભાગનો પિરપત કમાંક : જમન-૩૯૮૮-૧૧૧૬૭૨-ગ, તા.૨૩/૦૧/૧૯૮૯.
(૩) સામાનય વહીવટ િવભાગનો પિરપત કમાંક : ફરજ-૧૦૮૯-૪૮૩-વસુતાપ(૫),
તા.૨૧/૦૧/૧૯૮૯.
ઠ રા વ.
સને ૧૮૭૯ ના, મુંબઈ જમીન મહે સૂલ અિધિનયમની કલમ-૩૮ તથા સને ૧૯૭૨
ના ગુજરાત જમીન મહે સૂલ િનયમોના િનયમ ૭૩ (૧) અનુસાર મૃતદે હો દફનાવવા માટે ,
કબસતાન માટે તથા સમશાનના હે તસ
ુ ર સરકારી જમીન નીમ કરવા કલેકટર સકમ છે અને તે
હે તુ માટે જ જમીન નીમ ન થઈ હોય તો જમીન નીમ કરવા કાયરવાહઈ કરવા સંદભર (૧) તથા
(૨) માં દશારવેલા પિરપતોથી િજલા કલેકટરોને સુચના આપવામાં આવી છે .
૨. આ પકારે નીમ થયેલી સરકારી જમીનનો અિગ સંસકાર કરવા, સમાિધસથળ તરીકે કે
કબસતાન તરીકે જ યોગય ઉપયોગ થાય તે આવશયક છે . િખસતી તથા મુસલીમ કોમ ઉપરાંત
કે ટલાક હિરજનો તથા વાઘરી કોમમાં પણ મૃતદે હ દફનાવવાની પરંપરા છે . તેથી તે હે તુસર
નીમ થયેલી જમીનનો જે તે લોકો મતભેદો વગર જમીનનો સારી રીતે ઉપયોગ કરે અને
કોઈપણ વયિકત કે સંસથા ઉપરોકત હે તુસર નીમ થયેલી જમીન પર અનય પકારનો ઉપયોગ
અથવા ગેર કાયદે સર દબાણ ન કરે અને જે તે વગર કે કોમના લોકોને હક હે રાનગિત ન થાય,
તેમની ધાિમરક લાગણી ન દુ ભાય તેમજ લોકોમાં માહો માહ સંપ અને શાંિત જળવાઈ રહે તે
જવા સરકાર ઉતસુક છે . જે ગામ / શહે રમાં જમીનની ફાળવણી તથા વહીવટ માટે મતભેદો
હોય તયાં સમશાન માટે તેમજ મૃતદે હને દફનાવવા માટે સમશાન, સમાિધસથળ અને કબસતાન
માટે નીમ થયેલી સરકારી જમીનનો તે હે તુ સાર વયવિસથત ઉપયોગ થાય તે માટે તેવી
જમીનનો વહીવટ જે તે કોમ / વગરના સથાિનક લોકોની બનેલી વહીવટી સિમિતને સોપવાનું
સરકારની િવચારણા હે ઠળ હતું. કાળજભરી િવચારણાને અંતે સરકારે નકી કયુર છે કે , જયાં
આવી જમીનની યોગય જળવણી તથા વહીવટ કરવા માટે સથાિનક લોકોમાં મતભેદો પવતરતા
હોય તયાં, સને ૧૯૭૨ ના મુંબઈ જમીન મહે સૂલ અિધિનયમની કલમ - ૩૮ તથા સને
૧૯૭૨ ના ગુજરાત જમીન મહે સૂલ િનયમોના િનયમ ૭૩ (૨) ની જગવાઈ મુજબ સમશાન
C/LPA/1055/2016 CAV JUDGMENT DT 8.3.21
PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar
In Re: Kabristan (Graveyard) Bhavnagar Dispute
માતે, મૃતદે હ દફનાવવા સમાિધસથળ માટે તથા કબસતાન માટે નીમ કરવામાં આવેલી
જમીનનો જે તે કામ માટે સારી રીતે ઉપયોગ થાય તે પમાણે વહીવટ કરવાજે તે ગામ / શહે રનાં
જે તે વગરના સથાિનક લોકોની એક સિમિત બનાવી સિમિતને નીમ થયેલી જમીનનો વહીવટ
તે હે તુ માટે , કે ટલીક ચોકસ શરતોને આધીન રહીને, સોપવો જેથી તે હે તુ માટે જમીનનો
ઉપયોગ કરવા િહંદુઓ, વાઘરીઓ, હિરજનો, િખિસતઓ તથા મુસલીમો નાહક મુશકે લીઓ
અનુભવે નહી અને જે તે જમીનનો સારી રીતે ઉપયોગ કરી શકે . આવો વહીવટ નીચેની
શરતોને આધીન રહીને કરવાનો રહે શે.
(૧) જે ગામ / શહે રમાં આવી જમીનના યોગય વહીવટ કરવા માટે લોકોમાં અંદરો અંદર
મતભેદો પવતરતા હોય તયાં જે તે વગર/ જિતના સથાિનક લોકોની વધુમાં વધુ અિગયાર
સભયોની એક સિમિત રહે શે. જે ગામ / શહે રોમાં મતભેદો ન હોય તયાં આવી સિમિત રચવી
નહી.
(૨) સમશાન માટે , મૃતદે હ દફનાવવા સમાિધસથળ માટે તથા કબસતાન માટે ની જમીન
ઉપર અનય કોઈ વયિકત અથવા સંસથા ગેરકાયદે સર દબાણ ન કરે તેટલા કારણસર આવી
જમીનની ફરતી વાડ અથવા તારનું ફે નસીગ કરવા પાનત અિધકારી મંજુરી આપી શકશે .
ફરતી વાડે ફે નસીગ બનાવવાના ખચરની જવાબદારી જે તે લોકોની રહે શે.
(૩) ઉપરોકત હે તઓ
ુ માટે નીમ થયેલી જમીનનો ઉપયોગ જ અનય કોઈ હે તુસર થતો માલુમ
પડશે તો પાનત અિધકારીશી તેમની સતાની રએ તે જમીન કોઈપણ પકારના િવલંબ
વગર િવના વળતર નોટીસે સરકાર હસતક પરત લઈ શકશે.
(૪) સદરહુ જમીન ઉપર આનુષંિગક હે તુ િસવાયના અનય હે તુ માટે બાંધકામ થઈ શકશે નહી.
(૫) આ પકારના હે તુઓ માટે નીમ થયેલી જમીનની માિલકી િનયમો અનુસાર
સંપુણરપણે સરકરની રહે શે.
કોઈપણ સંજગોમાં આવી જમીન કોઈપણ સિમિત, કોઈપણ ટર સટ (વકફ) ના નામે
તબદીલ કરવાની કે તેમના નામે ચઢાવવાની કાયરવાહી કરવાની રહે શે નહી.
(૬) આવી જમીન ઉપર કોઈપણ નફાકારક પવૃિત થઈ શકશે નહી. અને તે જમીનનો
ઉપયોગ જે હે તુ માટે જ થાય છે , તે અંગેની તકે દારી સિમિત તથા સથાિનક સતાવાળાઓએ
રાખવાની રહે શે.
(૭) ઉપરોકત શરતો ઉપરાંત ગામ / શહે રની સથાિનક પિરિસથિત લકમાં રાખીને
સિમિત તેને સવિવવેક અનુસાર બીજ યોગય શરતો લાદી શકશે.
૩. આવા હે તુ માટે નીમ થયેલી જમીનો ઉપર જ દબાણ થાય તો અથવા દુ રઉપયોગ થાતો
C/LPA/1055/2016 CAV JUDGMENT DT 8.3.21
PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar
In Re: Kabristan (Graveyard) Bhavnagar Dispute
જણાશે તો તેને દુ ર કરવાની જવાબદારી સિમિતની રહે શે.
૪. ઉપરોકત હે તુ માટે રચાયેલી સિમિત તએના ઉદે શો, પિરપુણર કરી શકે તેવીિસથિતમાં નવી
તથા સથાિનક કાયદો અને વયવસથાની પિરિસથિત ઉપર તેની માઠી અસર પડે તેમ છે , તેવી
કલેકટરશીને ખાતરી થાય તો કલેકટરશીને ખાતરી થાય તો કલેકટરશી સિમિતના સભયોને
િવશવાસમાં લઈ સિમિતના સભયોને િવશવાસમાં લઈ સિમિતનો ભંગ કરી શકશે.
૫. આ સૂચનાઓનો અમલ કલેકટરશીઓએ તાતકાલીક કરવો.
ગુજરાત રાજયપાલશીના હુકમથી અને તેમના નામે
આઈ. એન. સોલંકી
સેકશન અિધકારી,
મહે સુલ િવભાગ, ગુજરાત સરકાર"
English Translation of Government Resolution
dated 12.9.1989
"To handover the management of
government land assigned for
cemetery, tomb and graveyard to
bury dead body to the local people's
committee...
Government of Gujarat
Revenue Department
Secretariat, Gandhinagar
Resolution No.JMN3989539Ga
Dated:12/09/1989
Read:
(1) Circular No.JMN39873575Ga, Dated:
08/09/1987 of the Revenue Department;
(2) Circular No.JMN3988111672Ga, Dated:
23/01/1989 of the Revenue Department;
(3) Circular No.FRJ2089483Vsutapra(5),
Dated: 21/01/1989 of the General
Administration Department.
C/LPA/1055/2016 CAV JUDGMENT DT 8.3.21
PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar
In Re: Kabristan (Graveyard) Bhavnagar Dispute
Resolution:
As per Section38 of the Bombay Land Revenue
Code, 1879 and Rules73(1) of the Gujarat Land
Revenue Rules, 1972, the Collector is competent
authority to assign the government land for burial of
deadbody, cemetery and graveyard and the District
Collectors have been directed by the Circulars referred
at Sr. No.(1) and (2) above to complete the procedure
for allotment of the lands if not done.
2. The lands assigned in such manner are required
to be utilized properly for the purpose of
crematorium, tomb or graveyard only. There is ritual
in some Harijan and Vaghri community besides
Christian and Muslim Community to bury the dead
body. Therefore, the government is eager to see that the
lands assigned for the said purpose are utilized
properly by the concerned people without any dispute,
and that no individual person or institute uses it
otherwise or make encroachment on the land
assigned for the above purpose, and that the persons of
the concerned caste or community do not face
difficulties unnecessarily, and that their religious
feelings do not get hurt and unity and peace be
maintained amongst them. It was under consideration
of the government to hand over the management to the
local management committee of the concerned caste /
C/LPA/1055/2016 CAV JUDGMENT DT 8.3.21
PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar
In Re: Kabristan (Graveyard) Bhavnagar Dispute
community to look after the proper utilization of the
lands assigned for crematorium, tomb and graveyard
to bury the dead body in the village/city where there is
difference of opinion for maintenance and
administration of the assigned land.
After due consideration, the Government has decided
that where there is difference of opinion prevailing
amongst local people regarding proper maintenance
and administration of such lands, as per Section - 38
of the Mumbai Land Revenue Act, 1879 and the Rule
73(1) of the Gujarat Land Revenue Rules, a committee
of local people of respective village / city comprising of
relevant sections shall be formed and the
administration of the assigned land shall be handed
over to the committee subject to certain conditions in
order to utilize the lands offered for burial of dead
bodies, tomb and burial grounds for relevant work.
So that Hindus, Vaghris, Harijans, Christians and
Muslims do not face unnecessary problems while
using the lands for aforesaid purpose and relevant
lands can be utilized properly. Such lands shall be
utilized subject to the conditions mentioned below.
(1) When difference of opinion is prevailing in
relevant village/city regarding proper administration
of such lands, a committee of maximum eleven
members from local persons belonging to relevant
class/caste shall be formed. Mamlatdar shall have the
C/LPA/1055/2016 CAV JUDGMENT DT 8.3.21
PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar
In Re: Kabristan (Graveyard) Bhavnagar Dispute
authority to form such committee. Such committee is
not to be formed in village/city where difference of
opinion does not exist.
(2) The Prant Officer can give permission for
erecting hedge or wire fencing around the land in
order to prevent unlawful encroachment of any
person or organization on such land for crematorium,
burial of dead body, tomb and cemetery. The expense
for hedge or wire fencing around the land will be borne
by people of the concerned community.
(3) If the land assigned for the aforementioned
purpose is found to be used for any other purpose, the
Prant Officer can vest the land with Government
without any delay, compensation or notice by the
authority vested in him.
(4) No construction for the purposes other than those
ancillary shall be carried out on the said land.
(5) Ownership of the assigned land for such
purposes shall vest with the government as per the
rules. No procedure for transferring or assigning such
land to any committee, any trust (Waqf) shall be
carried out in any circumstances.
(6) No profit making activity shall be carried out on
such land and a care shall be taken by the committee
and local authority that the land is used for the
C/LPA/1055/2016 CAV JUDGMENT DT 8.3.21
PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar
In Re: Kabristan (Graveyard) Bhavnagar Dispute
specified purpose.
(7) In addition to the above conditions, the
committee may impose other appropriate conditions
as per its discretion considering local situation of
village/city.
3. If land offered for such purpose is found
encroached upon or misused, the responsibility to
remove the hindrances rests with the committee.
4. If the Collector is of the opinion that the
committee formed for above mentioned purpose is not
in a condition to fulfill its objectives and local law and
order situation would be adversely affected, the
Collector can dissolve the committee after securing
confidence of the members of committee.
5. These instructions are to be followed by the
Collectors with immediate effect.
By order and in name of the Governor of Gujarat.
(I.N. Solanki)
Section Officer
Revenue Department,
Government of Gujarat"
7. In pursuance of the said order dated 4.2.1993 passed by the
Collector, the Mamlatdar, Bhavnagar served a notice on
Ghanchivad Memon Jamat, Navapura, Bhavnagar to hand over
C/LPA/1055/2016 CAV JUDGMENT DT 8.3.21
PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar
In Re: Kabristan (Graveyard) Bhavnagar Dispute
the possession of the land in question to the said Authority on
7.1.1998. It appears from the record that a revision came to be
filed against the District Collector dated 4.2.1993 before the
Additional Chief Secretary (Disputes), Revenue Department,
Government of Gujarat also, who passed an order on 30.5.1998
upholding the said order dated 4.2.1993 of the District Collector.
The operative part of the said order dated 30.5.1998 passed by
the Additional Chief Secretary (Disputes), Revenue Department,
Government of Gujarat is also quoted hereinbelow for ready
reference:
":ORDER:
As per the above particulars stated above, since the
Collector, Bhavnagar has passed order on 4.2.93 as per
the provisions of the resolution of the Revenue
Department, Dated: 12.09.1989, that the entire land
bearing City Survey No.7619 of 7630, situated in Ward
No.3 of Bhavnagar City, is to be taken back in favour
of the State Government and to ensure that the said
land is used only for the purpose of graveyard, at
present, there does not appear to be any ground to
interfere. Therefore, this application for review is
rejected."
8. Even though these proceedings were going on in the offices
of District Collector, Mamlatdar and Additional Chief Secretary
C/LPA/1055/2016 CAV JUDGMENT DT 8.3.21
PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar
In Re: Kabristan (Graveyard) Bhavnagar Dispute
from the years 1993 to 1998, it appears that only when the Trust
was again served a Notice for handing over the possession on
12.4.2002, then the said 42 Tenants suddenly chose to invoke the
writ jurisdiction of this Court and filed the aforesaid Special Civil
Application No.12594 of 2002 on 30.12.2002 which ultimately
came to be dismissed by the learned Single Judge and against
which the present Intra Court Appeal was filed by the said 42
Tenants out of about 100 Tenants there.
9. The learned Single Judge (Coram: Bela M. Trivedi, J.)
dismissed the writ petition with the following observations,
which are quoted hereinbelow for ready reference:
"13. After having heard the learned Counsels for the
parties and taking into consideration the documents
on record, it appears that the petitioners, though have
claimed tenancy rights in respect of the shops
allegedly situated on the lands in question, they have
neither given any details in respect of such shops
allegedly held by them, nor produced any documents
to show that they are the tenants inducted by the
respondent No.4 Trust. The petitioners have sought to
invoke the extraordinary jurisdiction of this Court
under Article 226 of the Constitution of India, without
specifying their right or interest in the lands in
C/LPA/1055/2016 CAV JUDGMENT DT 8.3.21
PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar
In Re: Kabristan (Graveyard) Bhavnagar Dispute
question by making absolutely vague averments. The
petition therefore deserves to be dismissed on that
ground alone. As transpiring from the replies filed by
the respondents, some of the petitioners along with
other persons have already approached the Civil
Court at Bhavnagar by filing various suits which
facts have also not been disclosed by the petitioners
in the petition. As stated herein above initially the
petitioners had also not impleaded the respondent
No.4 Trust as party respondent in the present petition,
against whom the impugned orders were passed by the
respondent authorities and which were also
challenged by the respondent No.4 before various
Courts at Bhavnagar and before the High Court, but
failed to obtain any relief. It is needless to say that as
per the settled legal position, the petitioners invoking
extraordinary jurisdiction of the High Court in the writ
under Article 226 of the Constitution are required to
disclose true and correct facts and cannot play hide
and seek by suppressing material facts from the
Court. Beneficial reference of the decisions in case of
Kishore Samrite Vs. State of Uttar Pradesh and Ors.,
reported in 2013(2) SCC 398, in case of K.D. Sharma
Vs. Steel Authority of India Ltd. and Ors., reported in
2008 (12) SCC 481, in case of M/s.Tilokchand
Motichand & Ors. Vs. H.B. Munshi & Anr., reported in
1969 (1) SCC 110 be made in this regard.
C/LPA/1055/2016 CAV JUDGMENT DT 8.3.21
PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar
In Re: Kabristan (Graveyard) Bhavnagar Dispute
14. Hence, apart from the facts that the petitioners
have not disclosed true and correct facts in the petition,
and that such a common petition on the basis of vague
averments is not maintainable in the eye of law, there
are number of disputed questions of facts involved in
the petition, which could not be gone into by this Court
in the petition under Article 226 of the Constitution of
India. There is nothing on record to suggest that the
petitioners are in possession of the alleged shops put
up on the lands in question, except the bare and vague
averments made by them in the petition.
15. It is pertinent to note that the respondent No.4
Trust has conveniently remained silent in the present
petition by not filing any reply. During the course of
hearing also nobody has remained present on behalf
of the respondent No.4 Trust. However, from the
averments made in the petition and from the replies
filed by the respondent State authorities and the
respondent No.11, it appears that the respondent No.4
Trust had filed various litigations challenging the
action of the respondent authorities, and had failed to
obtain any orders in its favour. Since the suits filed by
the respondent No.4 Trust and by some of the
petitioners appear to be pending before the concerned
Courts at Bhavnagar, this Court is not dwelling much
on rights of the petitioners qua the respondent No.4.
The judgements relied upon by learned Sr. Advocate
Mr.Thakore for the petitioners have no relevance to the
C/LPA/1055/2016 CAV JUDGMENT DT 8.3.21
PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar
In Re: Kabristan (Graveyard) Bhavnagar Dispute
facts of the present case, as the petitioners have failed
to produce any material to show that they were in
possession of or they had any right over the land in
question.
16. In view of the above, the petitioners having
failed to establish any violation of legal right, much
less fundamental right qua the land in question, and
since the petition involves disputed questions of facts,
the Court is not inclined to entertain the same. The
petition being devoid of merits, deserves to be
dismissed and the same is hereby dismissed. Rule is
discharged."
10. Mr. Mihir Thakor, learned Senior Counsel urged before us
that the land in question always vested in the said Trust and was
also declared as its Assets in the relevant form when the said
Trust was registered in the year 1962 under the Bombay Public
Trusts Act and right after the grant of the land in question for
'Kabristan' in the State of Bhavnagar in 1895, a 'Sanad' was
further issued in its favour in 1965 after inquiry under Section
37(2) of the Bombay Land Revenue Code, 1879 and therefore,
there was no question of the State assuming its powers to divest
the said Trust of its ownership right over the land in question
treating the same as a Grant under provisions of Section 38 of the
Land Revenue Code. He further submitted that there was no
C/LPA/1055/2016 CAV JUDGMENT DT 8.3.21
PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar
In Re: Kabristan (Graveyard) Bhavnagar Dispute
restriction or condition in the said grant or 'Sanad' imposed at
any point of time, i.e. user will be only the restricted to 'Kabristan
(Graveyard)' and therefore, on the alleged ground of its nonuser
or user for other purposes, like construction of shops and renting
them out, could not furnish a ground for divesting the Trust of its
ownership rights and vesting the same in the State.
11. The learned Senior Counsel Mr. Mihir Thakore emphasised
that while Section 37 of the Land Revenue Code envisages that all
public roads, lanes and paths, bridges, lands, etc. which are not
the property of individuals, or persons legally capable of holding
property, shall vest in the State. The exception to Section 37(1) is
Section 37(2) where a person can claim any right over the
property and it shall be lawful for the Collector or a Survey
Officer, after a formal inquiry to pass an order deciding the claim
Subsection (3) of Section 37 further provides that any party
either such individual or State can file a suit in a Civil Court
within one year of such order passed under Section 37(1) or 37(2)
of the Code. He submitted that Section 38 authorises the State
Government to assign any land belonging to State for any special
purpose which only can be taken back, if such land is not used for
the specified special purpose, but he submitted that the land in
C/LPA/1055/2016 CAV JUDGMENT DT 8.3.21
PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar
In Re: Kabristan (Graveyard) Bhavnagar Dispute
question first should belong to the State in the inquiry / civil suit
envisaged under Section 37 of the Code, which, he submitted in
the present case, was found to be belonging to the Trust itself and
never to the State and therefore, the District Collector could not
have passed the order on 4.2.1990. He also drew attention to
Section 133 of the Code which provides for such 'Sanad' to be
granted to the Holder of any building site or land in prescribed
form of Schedule H. He also drew attention to Section 68 of the
Code, wherein the occupant's rights are only conditional, but that
of the original grantee, like the Trust in question was not
restricted.
12. On the other hand, Mr. Meet Thakkar, learned Assistant
Government Pleader appearing for the State supported the order
of the learned Single Judge and pointed out that the present
matter is not only replete with various litigations for last so many
years and he mentioned various civil suits pending before the
Civil Courts, but mainly Mr. Meet Thakkar contended that the
Tenants of the shops in question who are fighting in the writ
jurisdiction of this Court in the present Intra Court Appeal as well
as in the Special Civil Application before the learned Single Judge
are only the front covers and they have no locus standi to claim
C/LPA/1055/2016 CAV JUDGMENT DT 8.3.21
PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar
In Re: Kabristan (Graveyard) Bhavnagar Dispute
any proprietary rights over the land in question and it is only the
Trust who can defend its Title against the order passed by the
District Collector on 4.2.1990. He submitted that the Trust is
already doing so by filing Civil Suit No.13 of 1998 which is
admitted by the other side. He submitted that the Tenants can
claim their rights of tenancy only through the landlord or owner
viz. the Trust, if at all, and therefore, even though the eviction
Notices were given only to the Trust and not to the Tenants,
some of the Tenants have come forward by filing this writ
petition, which is not maintainable. He submitted that while
Tenants so coming to this Court, have conveniently suppressed
the facts of civil suits filed by some of them also and the main
Civil Suit No.13 of 1998 filed by the Trust itself under the guise
that they were not the parties in such civil suit, but he submitted
that some of the civil suits were even filed by some of the Tenants
only and they cannot plead ignorance about the same.
13. The following details of Civil Suits and related other legal
proceedings in this matter which have been filed by the Trust or
the Appellants / Tenants, as were submitted by the learned
counsel for the Appellants / Tenants in the List of Dates and
Events submitted in the Court on 3.3.2021, are quoted below as
C/LPA/1055/2016 CAV JUDGMENT DT 8.3.21
PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar
In Re: Kabristan (Graveyard) Bhavnagar Dispute
submitted:
Sr. Name of the Parties Case No. Court Nature of the Status/
No. proceedings Other particulars
PROCEEDINGS INITIATED BY GHANCHIWAD MEMAN JAMAT TRUST ('TRUST')
1 Ghanchiwad Meman Regular Civil Judge Seeking permanent • The Court passed an
Jamat Trust through Civil Suit Senior Division, injunction against order dated
its Trustees 762 of 1997 Bhavnagar burying of dead 29.11.1997 rejecting
bodies in the land the temporary
1. Abdul Majid in question. injunction
Kasambhai *NOTE* application of the
Meman Copy of the Plaintiffs.
plaint is
2. Anwar enclosed • Suit withdrawn on
Hajihussain herewith at 24.6.2007
Bordiwala Pg.Nos. 8 to
3. Faruqbhai
Allarakhbhai Civil Misc. District Court, Challenging the Dismissed by order
Adhiya App. No. Bhavnagar order dated dated 13.4.1998.
4. Umarbhai 233 of 1997 29.11.1997 passed
Abubakarbhai by the Civil Judge
Tinwala (S.D.), Bhavnagar in
RCS No.762 of 1997
5. Mushtaqbhai
Alibhai Sheikh
Civil High Court of Challenging the Rejected by order
6. Ahmedbhai Gujarat order dated dated 30.10.2002 on
Revision
Yusufbhai 13.4.1998 passed by the ground of
Application
Lota the District Court, maintainability in view
No.1769 of
1998 Bhavnagar in Civil of the amendment of
Versus Misc. App. No.233 Section 115 of the CPC.
of 1997.
1. State of
Gujarat
2. The Collector,
Bhavnagar
3. The Deputy
Superintendent
of Police,
Bhavnagar
4. City, Mamlatdar
Bhavnagar
5. City DYSP,
Bhavnagar
6. Police
Inspector, C
Division
Station,
Bhavnagar
7. Prant Adhikari
(Revenue),
8. Commissioner
Bhavnagar
Municipality,
9. Alibhai
Sopariwala
(Sitadar)
10. Hanifbhai
11. Satarbhai
C/LPA/1055/2016 CAV JUDGMENT DT 8.3.21
PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar
In Re: Kabristan (Graveyard) Bhavnagar Dispute
Sr. Name of the Parties Case No. Court Nature of the Status/
No. proceedings Other particulars
2 Appeal filed by Additional Challenging the Rejected by order
Ghanchiwad Meman Chief Secretary, order dated dated 30.5.1998 on the
Jamat Trust against Revenue Dept. 4.2.1993 passed by ground that same has
order dated 4.2.1993 the Collector, already been
passed by Collector, Bhavnagar challenged in Regular
Bhavnagar. Civil Suit No.13 of
1998.
3 Ghanchiwad Meman Regular Civil Judge • Seeking • Application (Exhibit
Jamat throught its Civil Suit Senior Division, declaration that 77) seeking
Trustees No. 13 of Bhavnagar the land in amendment to
1998 question is the challenge order
1. Abdul Majid absolute dated 30.5.1998
Kasambhai property of the passed by Additional
Meman Trust. Chief Secretary,
Revenue
2. Anwar • Challenging the Department was
Hajihussain order of the rejected by an order
Bordiwala Collector dated dated 12.2.1999.
4.2.1993.
3. Faruqbhai • First injunction
Allarakhbhai • An application application was
Adhiya rejected by order
(Exhibit 77) was
filed seeking dated 22.6.2001
4. Umarbhai
permission to
Abubakarbhai
amend the plaint • Second injunction
Tinwala
in order to application was
challenge order rejected by order
5. Mushtaqbhai
dated 30.5.1998 dated 5.5.2009.
Alibhai Sheikh
passed by
Additional Chief
6. Ahmedbhai
Secretary, • Suit disposed of by
Yusufbhai Lota order dated
Revenue
Department. 18.12.2018 Ordered
Versus to be returned as per
the provisions of
1. The State of Order 7, Rule 10 of
Gujarat CPC.
2. The Collector, Civil High Court of Challenging the Allowed by order dated
Bhavnagar Revision Gujarat order dated 27.6.2002, thereby
Application 12.2.1999 passed permitting amendment
3. The Mamlatdar, No. 411 of by the Civil Judge in RCS No.13 of 1998.
Bhavnagar 1999 (S.D.) in RCS No.13
of 1998, rejecting
4. District Land Exhibit 77 seeking
Record Office & amendment.
City Survey
Officer Civil Misc. District Court, Challenging the Dismissed by order
Appeal Bhavnagar order dated dated 12.4.2002
5. Sunni Muslim 22.6.2001 passed
No.61 of
Samaj by the Civil Judge
(S.D.), Bhavnagar in
RCS No.13 of 1998
Civil High Court of Challenging the Rejected by order
Revision Gujarat order dated dated 30.10.2002 on
Application 12.4.2002 passed the ground of
No. 522 of by the District maintainability in view
2002 Court, Bhavnagar of the amendment of
in Civil Misc. Section 115 of the CPC.
Appeal No.61 of
2001.
Civil Misc. District Court, Challenging the Order dated 4.8.2011
Appeal Bhavnagar order dated passed directing the
No.58 of 5.5.2009 passed by parties to maintain
2009 the Civil Judge status quo.
(S.D.), Bhavnagar in
RCS No.13 of 1998
C/LPA/1055/2016 CAV JUDGMENT DT 8.3.21
PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar
In Re: Kabristan (Graveyard) Bhavnagar Dispute
Sr. Name of the Parties Case No. Court Nature of the Status/
No. proceedings Other particulars
Civil Misc. Civil Judge Seeking review of Pending
Application Senior Division, Order dated (Next Listing Date
No. 6 of Bhavnagar 18.12.2018 under 20.3.2021)
2019 Order 47 Rule 1 of
CPC with the
prayer that the RCS
No.13 of 1998 be
transferred to Wakf
Board, and not
returned under
Order 7 Rule 10 of
CPC.
4. Ghanchiwad Meman Regular Civil Judge Suit for Declaration Pending
Jamat throught its Civil Suit Senior Division, and Injunction, (Next Listing Date
Trustees 752 of 2002 Bhavnagar challenging the 20.3.2021)
order dated
1. Abdul Majid 24.12.2002 passed
Kasambhai by the Mamalatdar,
Meman Bhavnagar.
2. Anwar
Hajihussain
Bordiwala
3. Faruqbhai
Allarakhbhai
Adhiya
4. Umarbhai
Abubakarbhai
Tinwala
5. Iqbalbhai Arab
6. Ahmedbhai
Yusufbhai Lota
Versus
1. The State of
Gujarat
2. The Mamlatdar,
Bhavnagar
3. The Collector,
Bhavnagar
4. District Land
Record Office &
City Survey
Officer
5. Sunni Muslim
Samaj
5. Ghanchiwad Meman Regular Civil Judge • Alleging that the Pending
Jamat and its Civil Suit Senior Division, proceedings (Next Listing Date
Trustees No. 415 of Bhavnagar undertaken by 20.3.2021)
2008 the authorities
1. Abdul Majid are in breach of
Kasambhai the temporary
Meman injunctions
granted by the
2. Anwar Court in RCS
Hajihussain No.13 of 1998
Bordiwala and RCS No.752
of 1992.
C/LPA/1055/2016 CAV JUDGMENT DT 8.3.21
PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar
In Re: Kabristan (Graveyard) Bhavnagar Dispute
Sr. Name of the Parties Case No. Court Nature of the Status/
No. proceedings Other particulars
3. Faruqbhai • Seeking status
Allarakhbhai quo ante in
Adhiya respect of the
construction of
4. Umarbhai 21 mtr. road
Abubakarbhai through the
Tinwala said land.
5. Iqbalbhai Arab
6. Ahmedbhai
Yusufbhai Lota
Versus
1. The State of
Gujarat
2. The Collector,
Bhavnagar
3. The Mamlatdar,
Bhavnagar
4. Commissioner,
Bhavnagar
Municipality
PROCEEDINGS INITIATED BY TENANTS** OF THE LAND
(**TENANTS OTHER THAN THE PETITIONERS BEFORE THE HIGH COURT, UNLESS SPECIFIED)
6. Tajmahmad Regular Civil Judge Details not Disposed of
Hasanbhai Civil Suit Senior Division, available
No.244 of Bhavnagar
Versus 1999
1. The State of
Gujarat
2. Collector
3. City
Mamalatdar
4. Commissioner
7. Ismailbhai Regular Civil Judge Details not Dismissed for non
Ibrahimbhai Civil Suit Senior Division, available prosecution
Ghiwala No.753 of Bhavnagar
Versus
1. The State of
Gujarat
2. Collector
3. City
Mamalatdar
4. Sunni Muslim
Samaj
8. 1. Shabbirbhai Regular Civil Judge • Seeking Pending
Sattarbhai Civil Suit Senior Division, declaration that (Next Listing Date
Lakhani No. 755 of Bhavnagar the plaintiffs are 20.3.2021)
2002 legal tenants.
2. Himaliya Ice
Factory Regd.
C/LPA/1055/2016 CAV JUDGMENT DT 8.3.21
PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar
In Re: Kabristan (Graveyard) Bhavnagar Dispute
Sr. Name of the Parties Case No. Court Nature of the Status/
No. proceedings Other particulars
3. Abdullamiya Date of • Seeking
Dadamiya Filing: injunction from
30.12.2002 dispossession.
4. Safibhai
Ahamadbhai • Challenging the
*NOTE*
Petitioner order of the
5. Ibrahimbhai Collector dated
before High 4.2.1993.
6. Rameshbhai J. Court is
Plaintiff • Challenging the
Mehta
No.6 in RCS order dated
No.755 of 30.5.1998 passed
7. Mohmadarifbh
2002. by Additional
ai A.Kadarbhai
Chief Secretary,
Revenue
8. Meman Haji
Department.
Usman Haji
Janmohmad
• Challenging the
9. Meman order dated
Mohmadbhai 24.12.2002
Jusabbhai passed by the
Mamalatdar,
10. Shekh Bhavnagar.
Tajmohmad
Hasanbhai
11. Meman
Yusufbhai
Usmanbhai
12. Usmanbhai
Rediater
Versus
1. The State of
Gujarat
2. The Collector,
Bhavnagar
3. Special
Secretary
4. The
Mamlatdar,
Bhavnagar
5. Sunni Muslim
Samaj
9. Abdulaji Harunbhai Regular Civil Judge • Seeking Pending
Civil Suit Senior Division, declaration that (Next Listing Date
Versus No. 3 of Bhavnagar the plaintiff is a 20.3.2021)
2003 legal tenant.
1. The State
• Seeking
2. The Collector, injunction from
Bhavnagar dispossession.
3. Special • Challenging the
Secretary, order of the
State of Collector dated
Gujarat
4.2.1993.
4. The
• Challenging the
Mamlatdar,
Bhavnagar order dated
30.5.1998 passed
by Additional
Chief Secretary,
C/LPA/1055/2016 CAV JUDGMENT DT 8.3.21
PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar
In Re: Kabristan (Graveyard) Bhavnagar Dispute
Sr. Name of the Parties Case No. Court Nature of the Status/
No. proceedings Other particulars
5. Sunni Muslim Revenue
Samaj Department.
• Challenging the
order dated
24.12.2002
passed by the
Mamalatdar,
Bhavnagar.
10. 1. Abdulkhalid Regular Civil Judge • Seeking Pending
Abdulkadar Civil Suit Senior Division, declaration that (Next Listing Date
No. 4 of Bhavnagar the plaintiffs are 20.3.2021)
2. Hajibhai 2003 legal tenants.
Karimbhai
• Seeking
3. Ahmad injunction from
Hasanbhai dispossession.
4. Gunjan • Challenging the
Rameshbhai order of the
Mehta Collector dated
4.2.1993.
Versus
• Challenging the
1. The State of
Gujarat order dated
30.5.1998 passed
2. The Collector, by Additional
Bhavnagar Chief Secretary,
Revenue
3. Special Department.
Secretary, State
of Gujarat • Challenging the
order dated
4. The Mamlatdar, 24.12.2002
Bhavnagar passed by the
Mamalatdar,
5. Sunni Muslim Bhavnagar.
Samaj
11. 1. Gulamhussain Regular Civil Judge • Seeking Pending
Ibrahimbhai Civil Suit Senior Division, declaration that (Next Listing Date
No.7 of Bhavnagar the plaintiffs are 20.3.2021)
2. Mohmmadrafiq 2003 legal tenants.
Gulamhussain
• Seeking
Versus injunction from
dispossession.
1. The State of
Gujarat
2. The Collector,
Bhavnagar
3. Special
Secretary, State
of Gujarat
4. The Mamlatdar,
Bhavnagar City
5. Sunni Muslim
Samaj
12. 1. Abdulrazak Regular Civil Judge • Seeking Pending
Ibhrahimbhai Civil Suit Senior Division, declaration that (Next Listing Date
No. 8 of Bhavnagar the plaintiffs are 20.3.2021)
2. Mohmmad Iqbal 2003 legal tenants.
Gulamhussain
C/LPA/1055/2016 CAV JUDGMENT DT 8.3.21
PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar
In Re: Kabristan (Graveyard) Bhavnagar Dispute
Sr. Name of the Parties Case No. Court Nature of the Status/
No. proceedings Other particulars
Versus *NOTE* • Seeking
Petitioner injunction from
1. The State of No. 30 dispossession.
Gujarat before High
Court is
2. The Collector, Plaintiff
Bhavnagar No.1 in RCS
No.8 of
3. Special 2003.
Secretary, State
of Gujarat
4. The Mamlatdar,
Bhavnagar City
5. Sunni Muslim
Samaj
13. 1. Azizbhai Regular Civil Judge • Seeking Pending
Ahmedbhai Civil Suit Senior Division, declaration that (Next Listing Date
No. 18 of Bhavnagar the plaintiffs are 20.3.2021)
2. Yakub Khan 2003 legal tenants.
Pathan
• Seeking
Versus injunction from
dispossession.
1. The State of
Gujarat • Challenging the
order of the
2. The Collector, Collector dated
Bhavnagar 4.2.1993.
3. Special
• Challenging the
Secretary, State
of Gujarat order dated
30.5.1998 passed
4. The Mamlatdar, by Additional
Chief Secretary,
Bhavnagar City
Revenue
Department.
5. Sunni Muslim
Samaj
• Challenging the
order dated
24.12.2002
passed by the
Mamalatdar,
Bhavnagar.
14. 1. Gulamhussain Regular Civil Judge • Seeking Pending
Ibrahimbhai Civil Suit Senior Division, declaration that (Next Listing Date
No. 19 of Bhavnagar the plaintiffs are 20.3.2021)
2. Abdulrazak 2003 legal tenants.
Ibhrahimbhai
• Seeking
3. Mohammadrafiq *NOTE* injunction from
Gulamhussain Petitioner dispossession.
Versus before High
Court is
1. The State of Plaintiff
Gujarat No.2 in RCS
No.19 of
2. The Collector, 2003.
Bhavnagar
3. Special
Secretary, State
of Gujarat
4. The Mamlatdar,
Bhavnagar City
C/LPA/1055/2016 CAV JUDGMENT DT 8.3.21
PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar
In Re: Kabristan (Graveyard) Bhavnagar Dispute
Sr. Name of the Parties Case No. Court Nature of the Status/
No. proceedings Other particulars
5. Sunni Muslim
Samaj
15. 1. Mahmadhanif Regular Civil Judge Details not Dismissed for non
AbdulSatar Civil Suit Senior Division, available prosecution
No. 21 of Bhavnagar
2. Irfanbhai 2003
Asrafbhai
Lakhani
3. Ibrahim Bhai
Ahmadbhai
Lota
Versus
1. The State of
Gujarat
2. The Collector,
Bhavnagar
3. Special
Secretary, State
of Gujarat
4. The Mamlatdar,
Bhavnagar City
16. 1. Satarbhai Regular Civil Judge • Seeking Pending
Kasimbhai Civil Suit Senior Division, declaration that (Next Listing Date
Dariya No. 22 of Bhavnagar the plaintiffs are 20.3.2021)
2003 legal tenants.
2. Roshanben
Kasim • Seeking
injunction from
Versus dispossession.
1. The State of • Challenging the
Gujarat order of the
Collector dated
2. The Collector, 4.2.1993.
Bhavnagar
• Challenging the
3. Special
order dated
Secretary, State
of Gujarat 30.5.1998 passed
by Additional
4. The Mamlatdar, Chief Secretary,
Revenue
Bhavnagar City
Department.
5. Sunni Muslim
Samaj • Challenging the
order dated
24.12.2002
passed by the
Mamalatdar,
Bhavnagar.
17. Jusabbhai Regular Civil Judge • Seeking Pending
Ahmedbhai Civil Suit Senior Division, declaration that (Next Listing Date
No. 36 of Bhavnagar the plaintiffs are 20.3.2021)
Versus 2003 legal tenants.
1. The State of • Seeking
Gujarat injunction from
dispossession.
2. The Collector,
Bhavnagar
C/LPA/1055/2016 CAV JUDGMENT DT 8.3.21
PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar
In Re: Kabristan (Graveyard) Bhavnagar Dispute
Sr. Name of the Parties Case No. Court Nature of the Status/
No. proceedings Other particulars
3. Special • Challenging the
Secretary, State order of the
of Gujarat Collector dated
4.2.1993.
4. The Mamlatdar,
Bhavnagar City • Challenging the
order dated
5. Sunni Muslim 30.5.1998 passed
Samaj by Additional
Chief Secretary,
Revenue
Department.
• Challenging the
order dated
24.12.2002
passed by the
Mamalatdar,
Bhavnagar.
18. 1. Ajitbhai Regular Civil Judge Details not Dismissed for non
Ismailbhai Civil Suit Senior Division, available prosecution
Solanki No. 39 of Bhavnagar
2. Abdulbhai
Pirbhai Solanki
3. Yasinbhai
Murtujabhai
Malek
Versus
1. State of Gujarat
2. Collector
3. State of Gujarat
(Sp.Secretary)
4. City
Mamalatdar
14. Mr. Meet Thakkar, learned Assistant Government Pleader,
therefore, submitted that not only multiple abuse of process of
law is happening in the present case dragging the State in the
whirlpool, but the State was fully justified in divesting the Trust
itself of its proprietary rights and vesting the same in the State by
the order dated 4.2.1990 of the District Collector, Bhavnagar
which was upheld by the Additional Chief Secretary also. He also
C/LPA/1055/2016 CAV JUDGMENT DT 8.3.21
PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar
In Re: Kabristan (Graveyard) Bhavnagar Dispute
drew attention of the Court towards the Undertakings given by
all these Tenants before the learned Single Judge in pursuance of
an interim order passed by the learned Single Judge (Coram: D.P.
Buch, J.) on 30.12.2002, in which, vide para 3 of their
Undertakings, which are produced on record, as the Tenants
undertook before the Court to hand over the vacant possession
within a period of one week from the date of disposal of the writ
petition or the interim relief being vacated subject to any further
order/s that may be passed by the Court in this behalf. He
submitted that the Tenants have never complied with the said
Undertaking after dismissal of the writ petition by the learned
Single Judge on 23.9.2016.
15. Mr. Meet Thakkar, learned Assistant Government Pleader
also sought to justify the order passed by the District Collector on
4.2.1990 on the ground that the land in question was always
bound to be used only for the purpose of 'Kabristan' (Graveyard)
and therefore, its commercial use in the form of construction of
shops and renting them out to the various tenants was in breach
of such purpose, for which the land in question was granted to
them to the Trust and the State was empowered to resume the
land under Section 38 of the Land Revenue Code irrespective of
C/LPA/1055/2016 CAV JUDGMENT DT 8.3.21
PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar
In Re: Kabristan (Graveyard) Bhavnagar Dispute
condition imposed or not in 'Sanad' or Grant of 1895 and use it
for the public purposes as considered appropriate by the State in
view of the Government Resolution dated 12.9.1989 quoted
above.
16. Mr. Meet Thakkar, learned Assistant Government Pleader,
therefore, submitted that on the aforesaid grounds and
objections, the learned Single Judge was justified in dismissing
the writ petition and the present Intra Court Appeal filed by
Tenants being devoid of any merit, is also liable to be dismissed.
17. There is yet another angle to this litigation which was added
by Respondent No.11 Sunni Muslim Samaj, Bhavnagar, which is
a different sect other than the one, to which the said land was
originally granted for the purpose of Kabristan (Graveyard) and
learned counsel Mr. A.S. Asthavadi appearing for Appellant
submitted that he supports the arguments of the learned
Assistant Government Pleader and he drew attention of the Court
towards the application filed by the said impleaded party Sunni
Muslim Samaj under Article 226(3) of the Constitution of India
for vacating the ex parte stay order granted by the learned Single
Judge in Special Civil Application No.12594 of 2002, in which in
C/LPA/1055/2016 CAV JUDGMENT DT 8.3.21
PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar
In Re: Kabristan (Graveyard) Bhavnagar Dispute
para 9 thereof, he pointed out the pendency of various civil suits
filed by the Tenants and on the ground of this conduct, the
interim relief deserved to be vacated. Para 9 of the said
Application under Article 226(3) filed by Sunnin Muslim Samaj is
quoted hereinbelow for ready reference to give a ready reference
to the pending suits filed by the Tenants:
"9. The petitioners have not disclosed all the facts
before the Hon. High Court and concealed as under:
i) The petitioner No.16 (Sabir Abdul Sattar
Memon) & 31 (Rameshchandra Jayantilal
Mehta) have filed Civil Suit 755/2002 on the
same date i.e. 30.12.2002 on the same subject
matter and against the same Opponents for stay
order in Bhavnagar Court.
ii) The petitioner No.40 (Sabirbhai Hassanbhai
Shaikh) has also filed Civil Suit No.245/99 which
is dismissed by the lower Court in Bhavnagar.
iii) The other 18 associated tenants have filed the
Civil Suits No.753/2002, 3/2003, 4/2003, 7/2003,
8/2003, 18/2003, 19/2003, 21/2003 & 22/2003 on
the same subject matter against the same
Opponents in Bhavnagar Civil Courts.
In view of the facts stated above the applicant pray for
C/LPA/1055/2016 CAV JUDGMENT DT 8.3.21
PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar
In Re: Kabristan (Graveyard) Bhavnagar Dispute
passing a formal order vacating the stay order granted
in favour of the petitioners as per Art. 226(3) of the
Indian Constitution."
18. Mr. A.S. Asthavadi, therefore, submitted that the present
Appeal deserves to be dismissed.
19. Mr. M.T.M. Hakim, learned counsel appearing for the Trust
however supported the arguments made by Mr.Mihir Thakore,
learned Senior Counsel for the Tenants - Appellants - Writ
Petitioners and submitted that the Title and the possessory right
of the Trust over the land in question for Kabristan (Graveyard)
deserve to be protected and he also submitted that in an offshoot
litigation, when the local Municipal Corporation wanted to
construct a Road through the said land, the Trust opposed it by
filing a Civil Suit No.762 of 1997, in which, however, the
injunction was not granted and therefore, the said Public Road
came to be constructed by the Municipality, through the said
Kabristan land.
20. We have heard all the learned counsel and given our
thoughtful consideration to the submissions and the material on
record and the case laws cited at the bar.
21. In view of the complex and long historical litigating history
C/LPA/1055/2016 CAV JUDGMENT DT 8.3.21
PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar
In Re: Kabristan (Graveyard) Bhavnagar Dispute
of this case originating from 1895 and post Independence alleged
conferment of their rights which, according to the State
Government, stood violated by the Trust using the Kabristan
(Graveyard) land for commercial purposes and in view of the
pendency of Civil Suit No.13 of 1998 by the Trust itself for the
same relief and various other large number of Civil Suits by
Trust / Tenants both, as enumerated in the Table quoted above
and which undoubtedly claim same or similar reliefs as claimed
in their Writ Petition or Letters Patent Appeal, inter alia, assailing
Collector's order dated 4.2.1990 and claiming declaratory reliefs
and injunction, which is claimed here before us through the front
of the Tenants of the Trust, we are not inclined upon to
pronounce the merits of the rival contentions of the parties, lest it
affects the trial of the Civil Suit No.13 of 1998 filed by the Trust
and other related Civil Suits.
22. In the guise of a collateral attack to the eviction notices
served upon the Trust and not on the Tenants at all, the Tenants
have filed the present writ petition, therefore, we are of the firmly
of the opinion that the Tenants were acting only as
Spokespersons of the Trust itself. The Notices for eviction were
not even served on any of such Tenants, but on the Trust only.
C/LPA/1055/2016 CAV JUDGMENT DT 8.3.21
PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar
In Re: Kabristan (Graveyard) Bhavnagar Dispute
The Tenants have wrongly assumed it to be a cause of action
provided to them to invoke the writ jurisdiction of this Court even
without replying the Notices or without raising any objection
before the Competent Authority himself right from 1998 when the
first such Notice was served upon the Trust by the Mamlatdar. It
is only on this second round of the Notice served upon the Trust
in 2002 that a group of the Tenants 42 in number, filed the
present writ petition namely Special Civil Application No.12594
of 2002. Some of the Tenants including some of them being
Plaintiffs and Petitioners in both kind of proceedings, cannot be
permitted to abuse the process of law by multiplying the
proceedings in different Courts and Forums. The other Tenants
could have also very well joined as party or sought intervention in
Civil Suit No.13 of 1998 and other suits also to protect their right
of occupation besides the right of the Trust itself but some of
them filed civil suits and some filed present writ petition but
none of them chose to join the lis in the appropriate forum and
appropriate civil proceedings instituted by the Trust itself viz.
Civil Suit No.13 of 1998 and other Tenants.
23. Mr. Mihir Thakore, learned Senior Counsel chose to
describe it as 'herd movement', seeking to explain that some of
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PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar
In Re: Kabristan (Graveyard) Bhavnagar Dispute
them could rush to this Court with a genuine apprehension and
to protect their occupational rights. We are not very much
impressed even by this apparently attractive but untenable
argument. There was definitely a deliberate design to multiply
the proceedings in so many Civil Suits and writ proceedings just
to harass the State and its Authorities who were acting according
to law. Filing of Civil Suits also at points of time by different
persons of the same group is also an abuse of the process.
24. The scattering and spilling of the litigation in various
forums for essentially the same cause and same or even similar
relief claimed by the litigants has its serious darker grey area and
is inherently an abusive user of the process of law in different
Courts or Tribunals. The Judges presiding over the various Courts
are human beings and presented with the different shades of
material, evidence, documents and arguments, they may sway on
one way or the other, resulting in conflicting orders passed by
such different Courts and it takes years and lot of judicial time of
all the courts and specially higher courts to then converge those
conflicting orders into one clear pronouncement and a wrap up
rival claims and then produce a uniform judgment or order
covering all aspects of the matter.
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PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar
In Re: Kabristan (Graveyard) Bhavnagar Dispute
25. The litigation should normally flow from the lower rungs of
judicial hierarchy upwards but in the recent past, we have seen
the reverse down flow of such litigation and litigants normally
invoke the extraordinary powers of higher constitutional courts
first even though such litigation should have been initiated from
the lowest platform. If we see on the criminal side, the High
Courts are flooded with writ petitions and Section 482 CrP.C.
Petitions even for directing the investigation police officials to
lodge an FIR in the matter and investigate fairly into the case and
likewise on civil sides what could be a simple suit for declaration
and injunction is converted into a writ petition seeking
mandamus directions and declaratory reliefs without relevant
evidence proved in accordance with Evidence Act but on the
Affidavit only filed in writ jurisdiction where false and vague
Affidavits are filed galore. The powers of the constitutional courts
being extraordinary and much superior are undeniably there, but
they have to be invoked sparingly and in selected few cases and
not as an ordinary remedy sought in all such type of cases. This is
what results in 'docket explosion' which we all struggle to clear
and delay in that process is bound to happen.
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PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar
In Re: Kabristan (Graveyard) Bhavnagar Dispute
26. The court management and case flow management of the
cases should not only care for the consolidation and classification
of the cases involving common points for rendering common
judgments on cases involving common points, but the Courts
should also be conscious to examine primarily and at a
preliminary level, whether the extraordinary jurisdiction invoked
by the Petitioners is appropriate or not and whether they can be
relegated to an alternative remedy at the lower appropriate
Forums, Courts or Tribunals or not.
27. It is well, nay, settled position of law that the writ
jurisdiction can be invoked only against the final orders of the
lower authorities, Courts or Tribunals and that too if an effective
and alternative remedy is not available to the writ petitioners.
The terminology of alternative remedy being efficacious or
adequate is the area where the Courts have to take a pragmatic
and conservative view instead of being too liberal with 'open
door' policy.
28. In the present case before us, though we could embark
upon the journey of interpreting the provisions of the Gujarat
Land Revenue Code, 1879 which was earlier known as Bombay
Land Revenue Code, 1879 and after birth of State of Gujarat and
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PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar
In Re: Kabristan (Graveyard) Bhavnagar Dispute
creation of separate High Court for the State of Gujarat in the year
1960, the same Code was made applicable to the State of Gujarat
and interpretation of Sections 37, 38, 66 and 133 as canvassed
before us could be given, but such an academic exercise would
remain a hollow and academic exercise only unless the factual
foundations are first established by the parties. The Civil Suit
No.13 of 1998 and series of connected Civil Suits enumerated
above being pending before the Civil Courts, we are of the
opinion that till the lower courts are seized of the matter in hand,
we should desist from expressing any opinion either on the issues
of facts or even the questions of law, which are intertwined with
the questions of facts.
29. The Tenants have also filed various separate suits as per the
details given above and the best course would be to consolidate
the trial of all the pending civil suits filed by the Trust or the
Tenants and assign all of them to one Trial Court, so that all the
issues involved in the matter are properly adjudicated based on
the relevant admissible evidence. The Principal District Judge,
Bhavnagar is accordingly requested to undertake this exercise.
30. Accordingly, while declining to interfere in the matter in
any manner not only for the reasons of the civil suits being
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PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar
In Re: Kabristan (Graveyard) Bhavnagar Dispute
pending, but also because the parties have not apparently
approached this Court with clean hands and there is a taint of
suppression of material facts by them, multiple litigations for the
same or similar reliefs, therefore, we are not inclined to interfere
with the matter in any manner and we dispose of the present
Intra Court Appeal by relegating the parties to the Trial Court at
Bhavnagar below with a direction to the learned concerned
District Judge, Bhavnagar to consolidate the trial of all such
pending civil suits and assign the same to one Court for trial in
accordance with law as expeditiously as possible. The parties who
are not party in the array of Plaintiffs or Defendants before the
trial Court in this matter, can also be permitted to joint the lis
there.
31. With these observations and directions, the present Appeal
is disposed of. Civil Application No.1 of 2016 is also disposed of.
No costs.
(DR. VINEET KOTHARI, J)
(GITA GOPI, J)
After pronouncement of the CAV Judgment, Mr. Mihir
Thakore, learned Senior Counsel and other counsel appearing for
the Appellants submitted that since the Tenants are in possession
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PANDYA MANISHANKER DHANJIBHAI v. STATE OF GUJARAT & Ganchi Memon Jamat, Bhavnagar
In Re: Kabristan (Graveyard) Bhavnagar Dispute
of the shops in question for a long period and in one of the civil
suits pending before the Civil Court, an status quo order has also
been granted by the Trial Court, therefore, the status quo may be
maintained for a period of six weeks subject to the liberty being
given to the parties for applying for injunction before the learned
Trial Court and leaving it free for the Trial Court to consider the
same and pass appropriate orders after giving opportunity of
hearing to the Defendants and State also.
The aforesaid prayer seems to be justified. Therefore, we
direct that the status quo of the property in question shall be
maintained by the parties for a period of six weeks from today
and it will be open for the Trial Court to consider the applications
filed by the parties and the Trial Court will be free to pass
appropriate orders in accordance with law.
We may further direct that all the trials of all the civil suits
relating to this property will remain in one Court or Forum and
will not be segregated in any manner to avoid any conflict of the
orders by the two or more Forums.
(DR. VINEET KOTHARI, J)
(GITA GOPI, J)
Bharat
