High Court · 2024
Case Details
Cited in this judgment
Legal Reasoning
wp1026.23-corrected-1- This order is corrected as per speaking to the minutes of order dated 12.04.2024. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 1026 OF 2023Jumma Masjid Trust Committee Through Its President AltafKhan Nayyum KhanVERSUSThe State of Maharashtra and others...Advocate for the Petitioner : Mr. S.S. Kazi Public Prosecutor for Respondents 1 to 5 and 7: Mr. A.B. GiraseAdvocate for Respondent No.6 : Mr. V.R. Dhorde, a/w Mr. S.P.Nimbalkar & Mr. S.S. DudhaneAdvocate for Respondent No.8 : Mr. N.E. Deshmukh Advocate for Respondent No.9 : Mr. S.V. Dixit ….. CORAM : SANJAY A. DESHMUKH, J. DATED : 4th APRIL, 2024. PER COURT :- 1.This writ petition is disposed of yesterday in view of thestatement made by the learned advocate for the petitioner that thewrit petition has become infructuous.2.This Court vide order dated 18.07.2023, granted ad-interimrelief in terms of prayer clause “C”, which reads as under:-“(C)Pending hearing and final disposal of this criminalwrit petition, the execution and implementation of theimpugned judgment and order dated 11.07.2023passed by the learned District Collector, Jalgaon,and District Magistrate Jalgaon in proceeding No.JAMIN – 3 / 28 / COMPLAINT APPLICATION / 04 / wp1026.23-corrected-2- 2023, be stayed and the respondent no.6 be directedto handover the key of Jumma Masjid to thepetitioner forthwith.”3.Thus, pending hearing and final disposal of this writpetition, the execution, implementation and operation of theimpugned judgment and order dated 11.7.2023 was stayed.Respondent No.6 was directed to hand over the keys of JummaMasjid to the petitioner. Now the question whether the said keysshould be used continuously by the petitioner or not.4.Learned advocate for the petitioner submitted that thepetitioner is in possession of the said Survey No. 1100 whereinJumma Masjid is situated. There, they are making prayers for fivetimes in a day since 1860. He pointed out the map of the D.I.L.R.showing the city survey No. 1100 in which word Jumma Masjid isnoted. He further pointed out that in the concluding part of theimpugned order, it is held that the said property is protected underthe provisions of Maharashtra Ancient Monuments andArchaeological Sites and Remains Act, 1960. It is further held that asper the directions of the Executive Magistrate dated 31.7.1995, thekeys of the said building were handed over to the Chief Officer,Municipal Council, Erandol, district Jalgaon. It is also held that earlierto that the said building was handed over to the State Government.Learned advocate for the petitioner further pointed out the letter wp1026.23-corrected-3- dated 18.11.1954, sent by the Collector to the Archaeologydepartment, in which it was mentioned that it is used as JummaMasjid for religious purposes. Learned advocate has submitted twophotographs, which are taken on record and marked as X-1 and X-2for identification.Learned advocate for the petitioner is relying upon theauthority of the Hon’ble Supreme Court in the case of JoanMascarenhas E D'Souza Vs. State of Goa and Ors., AIR Online2023 BOM 716, in which in para 20 and 24 held as under:-“20.In the present case, there was no material beforethe District Magistrate placed by the Superintendent ofPolice to enable him to come to a conclusion that therewas any situation of public order envisaged by the actsallegedly committed by the Petitioner, for passingprohibition orders under Section 144 of the Code. Thereports placed before us, do not spell out any sufficientgrounds to proceed under this section, much less, armthe District Magistrate with the jurisdictional facts toproceed to pass any prohibitory/preventive ordersagainst the Petitioner.24. In Commissioner of Police and Ors. v. Acharya,AIR 2004 SC 2984 (supra), whilst dealing with thequestion as to what would be the true meaning ofprofessing, practicing and propagating religion, theSupreme Court has held thus:-"85. Religion is a social system in the name of Godlaying down the code of conduct for the people in wp1026.23-corrected-4- society. Religion is a way of life in India and it is anunending discovery into the unknown world. Peopleliving in society have to follow some sort of religion. It isa social institution and society accepts religion in a formwhich it can easily practice. George Bernard Shawstated, "There is nothing that people do not believe ifonly it be presented to them as science and nothingthey will not disbelieve if it is presented to them asreligion." Essentially, religion is based on "faith". Somecritics say that religion interferes with science and faith.They say that religion leads to the growth of blind faith,magic, sorcery, human sacrifices, etc. No doubt, thehistory of religion shows some indications in thisdirection but both science and religion believe in faith.Faith in religion influences the temperament andattitude of the thinker. Ancient civilisation viz. the IndusValley civilisation shows faith of people in Siva andSakthi. The period of Indus Valley civilisation wasfundamental religion and was as old as at least theEgyptian and Mesopotamian cultures. People worshipSiva and the trishul (trident), the emblem of Siva whichwas engraved on several seals. People alsoworshipped stones, trees, animals and fire. Besides,worship of stones, trees, animals, etc. by the primitivereligious tribes shows that animism viz. worship oftrees, stones, animals was practised on the strongbelief that they were abodes of spirits, good or evil.Modern Hinduism to some extent includes Indus Valleycivilisation culture and religious faith. Lord Siva isworshipped in the form of linga. Many symbols havebeen used in Hindu literature. Different kinds ofsymbols and images have different sanctity. Baring ofchest, arms and other parts of body represent the wp1026.23-corrected-5- weapons of symbols of Siva. Modern Hinduism hasadopted and assimilated various religious beliefs ofprimitive tribes and people. The process of worship hasundergone various changes from time to time.”5.Learned advocate for the petitioner is further relying uponthe judgment of the Hon'ble Supreme Court in the case of GulamAbbas and others Vs. State of Uttar Pradesh and others, (1982) 1Supreme Court Cases 71, in which in para 27 it is held as under:- “27. The entire basis of action under Section 144 isprovided by the urgency of the situation and the powerthereunder is intended to be availed of for preventingdisorders, obstructions and annoyances with a view tosecure the public weal by maintaining public peace andtranquility. Preservation of the public peace andtranquility is the primary function of the Governmentand the aforesaid power is conferred on the executivemagistracy enabling it to perform that functioneffectively during emergent situations and as such itmay become necessary for the Executive Magistrate tooverride temporarily private rights and in a givensituation the power must extend to restrainingindividuals from doing acts perfectly lawful inthemselves, for, it is obvious that when there is aconflict between the public interest and private rightsthe former must prevail. It is further well settled that thesection does not confer any power on the ExecutiveMagistrate to adjudicate or decide disputes of civilnature or questions of title to properties or entitlementsto rights but at the same time in cases where such wp1026.23-corrected-6- disputes or titles or entitlements to rights have alreadybeen adjudicated and have become the subject-matterof judicial pronouncements and decrees of civil courtsof competent jurisdiction then in the exercise of hispower under Section 144 he must have due regard tosuch established rights and subject of course to theparamount consideration of maintenance of publicpeace and tranquility the exercise of power must be inaid of those rights and against those who interfere withthe-lawful exercise thereof and even in cases wherethere are no declared or established rights the powershould not be exercised in a manner that would givematerial advantage to one party to the dispute over theother but in a fair manner ordinarily in defence of legalrights, if there be such and the lawful exercise thereofrather than in suppressing them. In other words, theMagistrate's action should be directed against thewrong-doer rather than the wronged. Furthermore, itwould not be a proper exercise of discretion on the partof the Executive Magistrate to interfere with the lawfulexercise of the right by a party on a consideration thatthose who threaten to interfere constitute a largemajority and it would be more convenient for theadministration to impose restrictions which would affectonly a minor section of the community rather thanprevent a larger section more vociferous and militant.”6.Learned advocate for the petitioner lastly submitted that thekeys be retained with the petitioner as per the interim order passedby this Court.
Legal Reasoning
wp1026.23-corrected-7- 7.Learned Public Prosecutor for the respondent authoritieshas strongly opposed the prayer of the petitioner and submitted thatthe petitioner now cannot retain the keys of the said building for thatpurpose. He is relying upon the judgment of the Hon’ble SupremeCourt in the case of Ouseph Mathai and others Vs. M. AbdulKhadir, (2002) 1 SCC 319, in which in para 13 it is observed asunder:- “13. Learned counsel appearing for the respondent-tenants submitted that as there was a stay regardingdispossession of the tenants, the tenants were justifiedin depositing the rent within one month after thedismissal of their petition under Article 227 of theConstitution of India. It is settled position of law thatstay granted by the court does not confer a right upon aparty and it is granted always subject to the final resultof the matter in the court and at the risks and costs ofthe party obtaining the stay. After the dismissal, of thelis, the party concerned is relegated to the positionwhich existed prior to the filing of the petition in thecourt which had granted the stay. Grant of stay doesnot automatically amount to extension of a statutoryprotection.”8.Learned Public Prosecutor has also placed reliance on thejudgment of the Hon’ble Supreme court in the case of PremChandra Agarwal and another Vs. Uttar Pradesh FinancialCorporation and others, (2009) 11 SCC 479, in which in para 3, it isheld as under:- wp1026.23-corrected-8- “3. It is a well-settled principle that once a final orderis passed, all the earlier interim orders merge into thefinal order, and the interim orders cease to exist. In thisappeal, since the final order has been passed by theHigh Court, obviously all the interim orders passed bythe High Court in the same writ petition cease to existautomatically. Consequently, any direction given in theinterim order dated 24-4-2008 also ceases to exist. Inview of the final order passed by the High Court, theimpugned interim order and any direction therein haveceased to exist. The appeal has become infructuousand is, accordingly, dismissed.”9.Learned Public Prosecutor has submitted the map ofmeasurement carried out on 6.6.2023 regarding the property bearingcity survey No.1100, which is taken on record and marked as Y-1 foridentification. In the said map, the word “Jumma Masjid” is notwritten. Further, he pointed out that the words “Jumma Masjid” arewritten in English and all other contents are in Marathi language aspointed out by the learned advocate for the petitioner in the map atExh.X-1. 10.Learned advocate for respondent No.6 submitted that asfar as the possession of the disputed property is concerned, it ismatter of evidence and this Court cannot enter into that aspect at thisstage. The statutory right cannot be created by the said interimorder.
Decision
wp1026.23-corrected-9- 11.Learned advocate for respondent No.8 submitted that it isthe property registered with the Wakf Board. 12.Learned advocate for respondent No.9 submitted that it isan admitted fact that the writ petition becomes infructuous as theimpugned order was for a limited period and therefore the writ petitionis disposed of. He submitted that the keys were handed over to thepetitioner as per the interim order passed by this court on 18.7.2023and the said keys were accepted by the petitioner. 13. As far as the disputed issue as to right to possess andenjoy the disputed property is concerned, it is a matter of evidenceand this court cannot decide that aspect. The interim order passedby this court directing to hand over the keys to the petitioner is nowthe fact in issue. As per the law laid down by the Hon’ble SupremeCourt in the case of Ouseph Mathai and others cited (supra) that ifthe stay is granted by the Court that does not confer a right upon aparty and it is granted always subject to the final result of the matterin the court. After the dismissal of the lis, the party concerned isrelegated to the position which existed prior to the filing of the petitionin the court which had granted the stay. Grant of stay does notautomatically amount to extension of a statutory protection. Thus, byinterim order no right can be created in favour of the petitioner. wp1026.23-corrected-10- 14.As far as the ratio laid down in the authority of GulamAbbas and others cited (supra) is concerned, it is regarding themain issue challenged in the writ petition about powers of theExecutive Magistrate to adjudicate or decide disputes of civil natureor questions of title to properties or entitlements to rights. Therefore,it is not useful to the petitioner. 15.As far as the ratio laid down in Joan Mascarenhas ED'Souza cited (supra) is concerned, it is about the jurisdiction of theDistrict Magistrate as to whether he can pass prohibitory orpreventive order or not. Now there is very limited question beforethis court about continuation of the interim relief granted by this Courton 18.07.2023. This Court is not expected to decide as to whetherany party is entitled or having right over the disputed property.Considering the principle of status quo ante, it would be proper todirect the petitioner to hand over the keys to the respondent No.6 asper the direction of the Sub Divisional Officer by an order dated31.7.1995.16.For the reasons stated above and the ratio laid down in theauthority of Ouseph Mathai and others cited (supra), prayer of thepetitioner cannot be allowed. In view of the same, the petitioner isdirected to hand over the keys to respondent No.6 on or before13.04.2024. wp1026.23-corrected-11- 17.Learned advocate for the petitioner prays for stay to thisorder for a period of six weeks from today, as the petitioner is willingto challenge this order in the Hon'ble Supreme Court. 18.Learned Public Prosecutor has strongly objected the prayerof the petitioner. He submitted that this court has already grantedone week time to hand over the keys to respondent No.6 MunicipalCouncil. He further pointed out the judgment in the case of OusephMathai and others cited (supra), in which it is observed that after thedismissal of the lis, the party concerned is relegated to the positionwhich existed prior to the filing of the petition in the court which hadgranted the stay. Grant of stay does not automatically amount toextension of a statutory protection. 19.Considering the ratio laid down in the authority of OusephMathai and others cited (supra) and the fact that the writ petition hasbecome infructuous, it would not be proper to grant stay as prayed forby the learned advocate for the petitioner. Hence, the prayer of thelearned advocate for the petitioner is rejected. (SANJAY A. DESHMUKH, J.) rlj/