A nj urn an - E - Islam, v. Commissioner of Hubli Dharwad Municipal Corporation, Hubli. & Ors.

(By Sri M.R.Naik, Sr. Advocate for Sri G.I. Gachchinamath, Adv. for Ri; Smt. K. Vidyavathi, AGA for R2; Sri Suresh N.Kini, Adv. for impleading applicants) .RESPONDENTS This petition is filed under Articles 226 & 227 of the Constitution of India praying to direct the Ri, to consider the representation of the petitioner dated 15.2.2010 and pass appropriate order in accordance with law. This petition having been reserved, the Court made the following: ORDER This writ petition is by Anjuman-E-Islam, Hubli, by its President, to issue a writ of mandamus and direct the Commissioner of Hubli Dharwad Municipal Corporation (‘HDMC for short), to consider a representation dated

15.2.2010, as at Annexure-D and pass appropriate order.

2. The subject matter of the petition relates to a plot of land measuring about 4991 Sq.yards, bearing CTS No.174, now situated in the heart of Hubli City, on which a sacred wall “IDGAH”, before which the Muslim community offers the prayers, exists. The said plot of land became the root cause for a clash on 17.3.1972, between the members of the two communities, which resulted in blood shed, loss of property and life. The said incident gave rise to the institution of a civil suit against the petitioner herein and 2 others. The suit having been decreed, Civil Appeals filed were dismissed by the Apex Court. 3 decades of litigation, during which period also there were clashes between the members of the two communities, unfortunately, the quietus has not been reached. Despite,

3. The petitioner having submitted a representation dated 15.2.2010, alleging inaction on the part of HDMC, filed this writ petition. In para 13 of the writ petition, reference has been made to a representative suit filed by the residents of Hubli City against the petitioner i.e., O.S.No.359/1972 and also the appeals by the petitioner questioning the decree passed in the said suit. For the reasons best known to the petitioner, copies of the judgments/decrees passed in the said suit and the appeals filed thereagainst were not produced. Selected portions of 4 judgment dated 12.10.1982 passed in R.A.No.40/1982 by the learned II Additional Civil Judge, Hubli, was extracted. By an order dated 20.8.2010, the petitioner was directed to produce the judgments passed by the Civil Courts, High Court and the Supreme Court. The petitioner and the respondents have placed on record the said judgments and decrees.

4. An application was filed on 27.8.2010 by certain residents of Hubli City, seeking impleading as additional respondents. In view of the objections raised by the petitioner for the impleading, it was decided to hear the application along with the main matter. However, applicants were permitted to file objections, if any. The applicants/proposed additional respondents, statement of objections to the writ petition on 23.9.2010.

5. The 1st and 2nd respondents have filed separate statements of objections Additional statement of objections was filed by the 1st respondent on 12.12.2011

6.9.2010. 5

6. The petitioner filed a memo dated 11.11.2011, seeking permission to delete respondent No.2, by stating that no relief is sought against respondent No.2 and hence, is not a necessary party to the writ petition. Memo was placed on record and respondent No.2 was deleted. [.A.1/2011 was filed on 15.11.2011 by certain other residents of Hubli City for impleading them as additional respondents in the writ petition.

7. Sri Padmanabha Mahale, learned Sr.Advocate for the petitioner, on 11.11.2011, submitted that the matter is urgent should immediately consideration.

8. Preliminary submissions of the learned counsel on both sides were heard on 9.12.2011. Considering the background of the case, noticed supra, Government of Karnataka, represented by the Chief Secretary, was directed to be impleaded as respondent No.2 and the learned AGA was directed to accept notice. State of Karnataka was impleaded. 6

9. On 14.12.2011, arguments of the learned counsel on both sides was heard in part. Since the hearing could not be concluded even at 6.30 p.m., the matter was adjourned

19.12.2011. On

19.12.2011, the 1St respondent filed memo of submissions, accompanied by copies of 2 communications and photographs of property. Arguments of the learned counsel on both sides were heard in full. For want of time, order could not be dictated.

10. On 22.12.2011, petitioner has filed memo to withdraw the writ petition, without prejudice to its rights and interest. On the same day, to the said memo, the 1st respondent filed statement of objections.

11. On behalf of the petitioner, on 14.12.2011, Sri Padmanabha Mahale, learned Sr.Advocate submitted the arguments at length. Sri Madhusudan R Naik, learned Sr.Advocate appeared the 1St respondent submitted the reply arguments. learned Sr.Advocates being inconclusive even at 6.30 Arguments of -7 p.m., the petition was adjourned. On 19.12.2011, Sri F.V. Path, learned Advocate appeared for the petitioner and submitted further arguments and Sri Madhusudan R Naik, learned Sr.Advocate replied. On behalf of the impleading applicants, Sri Suresh S Kini and Sri M.B.Nargund, learned Advocates, were heard on the legal issues.

12. Indisputably, O.S.No.359/1972 against HDMC, State of Mysore and the petitioner/defendants No.1 to 3 respectively, was decreed on 7.2.1973, by the learned II Additional Munsiff, Hubli. The said judgment and decree was questioned by the petitioner by filing R.A.No.40/1974, in the Court of II Additional Civil Judge at Hubli. The Karnataka Board of Wakfs got impleaded as an additional appellant. The said appeal upon hearing and consideration was allowed in part and the judgment and decree passed by the Trial Court was modified. The suit was decreed with costs. The orders passed by the 2d defendant in the suit, on 9.2.1961 and 8.1.1962, were declared as illegal, ultravires, void and the transaction itself 8 between defendants No.1 and 3 under the deed dated 30.3.1962 as not binding on the public within the limits of the 1st defendant Municipal Corporation. The 3 defendant i.e., the petitioner herein, was ordered to remove the building constructed by it on the suit property within 45 days period and in case of default, the plaintiffs were held entitled to get the same removed with the assistance of the Court, at the cost of the 3 defendant i.e., petitioner. The petitioner which was defendant 3’ O.S.359/1972 appellant R.A.No.40/1974, questioned the said decrees by filing RSA No.754/1982. The Karnataka Board of Wakfs by its Secretary filed RSA No.1/1983. Both the appeals having been consolidated and heard was dismissed on 18.6.1992. The said decrees were questioned by the said appellants by filing SLP Nos.10584/1992 and 11692/1992. Leave having been granted, the petitions were registered as Civil Appeal Nos.1919/1995 and 1020/1995. A Cross objection filed, was registered as Civil Appeal No.1021/1995. All the 3 appeals were dismissed by the Apex Court, by an order 9 dated 111.2010. Thus, the decree passed against the petitioner in R.A.No.40/1974 dated 12J0.1982, by the II Additional Civil Judge, Hubli, has attained finality.

13. Challenging a communication dated 23.1.2010 the Government of Karnataka, wherein, Commissioner of HDMC was directed to hoist the National Flag in Hubli Idgah Maidan, on the Republic Day i.e., 26.1.2010, filed W.P.No.60316/2010. Finding that, Hubli Idgah Maidan belongs to the HDMC, the writ petition was dismissed on 25.1.2010. petitioner

14. Concededly, the plot in question belongs to HDMC. In the civil side litigation noticed supra, it has been held that, Ex.D1 i.e., (Annexure-C), was a licence and that, neither the general public nor Muslim community in particular, acquired right over the property by way of user from time immemorial or by dedication, express or implied. the property belongs to HDMC and it has every right to deal with the It has been further held that, 10 property for the purpose of, and not inconsistent with the Municipal law, by which, it is governing.

15. Having noticed that the Idgah Maidan, which is in the heart of the City, has become a source of nuisance, filthy and breeding source for mosquitoes and that the Idgah Maidan not only needs but essentially required to be maintained clean and mosquito free, in order to carry out its essential duties and obligations towards public life and health and to protect the environment of the city which would also enhance the beauty and utility value of the maidan, the HDMC, on 28.10.2006, sought co-operation of the petitioner, to carry out the work of paving the entire Idgah maidan area. The petitioner, on 1.11.2006, declined to extend co-operation, by making reference to an interim order of status-quo passed in C.A.No.1019/1995.

16. On behalf of the petitioner, learned Sr.Advocate insisted that the matter should be taken up immediately for consideration and decided. In view of the request, despite the heavy work load, the matter was taken up for hearing. Arguments were addressed on behalf 11 the petitioner by Sri Padmanabha Mahale, learned Sr.Advocate and Sri F.V.Fatil, learned Advocate, at great length. Sri Madhusudan R Naik, learned Sr.Advocate submitted the reply arguments at length. Even Sri Suresh S Kini and Sri M.B.Nargund made extensive submissions on legal aspects of the matter.

17. The matter would have been decided on its merit, but a memo dated 21.12.2011, 22.12.2011 by the petitioner seeking withdrawal of the writ petition. Even after the memo of submissions was filed by the 1st respondent on 19.12.2011, Sri F.V.Patil by placing reliance on certain case laws, made submissions at length, on the merit of the matter. This petition not only contributed to the work load of the Court but also consumed substantial time and came in the way of the genuine cases which need assistance of the Court for doing justice being decided.

18. The act of the petitioner in filing the memo to withdraw the writ petition, after conclusion of the hearing 12 of the case is nothing but wasting judicial time and an abuse of process of law. There is want of bona fides on the part of the petitioner. For wasting judicial time and abuse of process, the petitioner deserves to be imposed with exemplary cost. However, I refrain from imposing cost, with the fond hope, that atleast henceforth, petitioner would not file unwarranted cases and give room for any abuse of law and process of the Court, since no litigant has a right to unlimited drought on the Court time and public money, in order to get the affairs settled in the manner he petitioner wishes. In the result, memo of the petitioner withdrawing the writ petition is placed on record and the writ petition stands dismissed as not pressed. Consequently, pending applications impleading do not survive for consideration. Ksj/ sd/II JUDGE