1 AO No.94/2011 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD APPEAL FROM ORDER NO.94 OF 2011. Abdul Gani Abdul Reheman Age: 56 Yrs., occu. Business, Plot No.92-93, Roza Bag, N-12, CIDCO, Aurangabad. - APPELLANT (orig.deft.no.1) VERSUS 1) The Managing Committee, Jama Masjid, Roza Baugh, Aurangabad, Through its Secretary - Mohemmad Abdul Rashid s/o Ahmed Ali, Age: 68 Yrs., occupation – pensioner, R/o Plot no.52, N-12, Roza Bagh, Aurangabad. 2) City and Industrial Development Corporation, CIDCO, New Aurangabad, Through its Administrator. 3) The Maharashtra State Board of Wakf, Panchakki, Aurangabad, through its Chief Executive Officer. - RESPONDENTS (Resp.No.1 is orig.pltff. & Resp.Nos.2 & 3 are orig.defet.) ***** Mr.SV Advant, Advocate for Appellant; Mr.PG Godhamgaonkar, Adv. h/for Mr.RR Shaikh, Adv. For Respondent No.1; Mr.AS Bajaj, Advocate for Respondent No.2; Mr.MBW Khan, Advocate for Respondent No.3. ----- 2 AO No.94/2011 CORAM : K.U.CHANDIWAL, J. DATE OF RESERVING JUDGMENT : 20th DECEMBER, 2011. DATE OF PRONOUNCING JUDGMENT: 23rd DECEMBER, 2011. JUDGMENT: 1) Heard the learned Counsel for the parties at length. 2) The appellant questions ad interim injunction granted by learned Presiding Officer of Wakf Tribunal in Wakf Suit No.38/2011 dated 16th May, 2011. 3) This Court on 10th June, 2011 admitted the Appeal from Order and pending hearing and final disposal of the AO, interim relief, in terms of prayer clause (B) of the CA No.6580/2011, was granted. 4) The respondent No. 1 – Jama Masjid Managing Committee, Roza Bag (for short, Jama Masjid committee) claimed that the property admeasuring 1408 sq. meters, including Masjid with four boundaries therein referred in the plaint paragraph 2, belongs to Jama Masjid, which is part of Survey No.7 of Roza Bag. The respondent No.1 claimed that an entry regarding wakf institution is made in the Government Gazette dated 17th May, 1973, vide Serial No.26. This is in existence prior to acquisition of Survey No.7 by CIDCO (Respondent No.2) by Award dated 19.11.1976. 3 AO No.94/2011 (a) The respondent claimed that since CIDCO has acquired 9 acres and 10 gunthas of land, it was so mentioned in the revenue record, vide mutation entry No.399 and CIDCO has received the possession. The CIDCO had prepared development plan and laid lay outs. Plot Nos.92 and 93 were allotted to the petitioner – Abdul Gani. However, subsequently, plots location was changed. An area of 266 sq. meters, belonged to the Jama Masjid, is included in the area of plots of the petitioner and CIDCO has erroneously gave possession to the petitioner on 15.3.2005. An additional area of 95.81 sq. meters of Plot No.23-B was also given to the petitioner. (b) The respondent No.1 further claimed in the said suit that the lease-deed or possession slip issued in favour of the petitioner is illegal. The area of Jama Masjid could not be allotted to the petitioner by the Respondent No.2 - CIDCO. (c) Respondent No.1 in the wakf suit also claimed that the petitioner was in process of carrying construction activities. He has not paid any heed to earlier objection raised by Jama Masjid Committee to the various authorities. The property is to be protected by preventing/restraining the petitioner from effecting any sort of construction on plot Nos.92 and 93. (d) The respondent no.1 has earlier also initiated identical proceedings, being suit No. 93/2008, before the Wakf Tribunal, Aurangabad and on 4 AO No.94/2011 5.12.2008, status quo was granted. However, the said proceedings were rejected by order dated 7th March, 2009 as the wakf, in question, had no registration under Section 36 of the Wakf Act, 1995. The registration of the Masjid is recorded subsequently on 17.01.2009. 5) The petitioner, has his grievance against the Respondent No.1 – Jama Masjid Committee to be acting high-handedly. Successive proceedings for same property are not tenable action, suffer from principles of res judicata. The possession of the petitioner on the suit plots and effecting construction activities thereon are in lawful rights vested in the petitioner as a purchaser of lease-hold rights from the competent authority, the CIDCO. Lease agreement dated 15.1.1988 provided allotment of plot No.92, admeasuring 250 sq.meters to the petitioner. (a) Learned Counsel for the petitioner claimed that by virtue of agreement of lease dated 15.3.2005, the CIDO has changed the lay out of the plots laid in land Survey No.7, including size of the plots. Consequently, the CIDCO prepared revised site plan of plot Nos.92 and 93, of which the possession was already handed over to him way back in 1987 on payment of lease amount. (b) The petitioner has construction permission from Municipal Corporation, Aurangabad to construct the said plots; vide Commencement Certificate dated 5 AO No.94/2011 21.4.2008 and he has commenced the construction. (c) The Wakf suit No.93/2008 was rejected by virtue of orders below Exhibit-22 in terms of order VII Rule 11(D) of CPC on 7th March, 2009, which amounts to passing of a decree, not challenged and has attained finality. (d) Learned Counsel for the petitioner also submits that even the communication by Chief Executive Officer of Wakf Board (Respondent No.3) also specifies that they are consciously alive to the possession of the petitioner to be an allottee of the plots and possesses leasehold rights thereof on consideration. Even plot Nos.1 to 7 of the CIDCO are not property of either the Wakf Board or of the Jama Masjid, still, the Jama Masjid at Rojabag is attempting to treat plot Nos. 1 to 7 to be of its property, illegally. (e) The properties allotted by CIDCO to the Jama Masjid and allotted to him are district, different and no rights flow in favour of the Jama Masjid to arrest/prevent the construction activities initiated by the petitioner. The learned Counsel submits, grant of ad interim injunction by learned Presiding Officer of the Wakf Tribunal, is contrary to record, illegal and hence deserves its quashment. 6) On behalf of CIDCO, it is canvassed that the land Survey No.7 was acquired by CIDCO as a Development authority under the special statute. It 6 AO No.94/2011 is subjected to planning authority and it was a notified area of new township of Aurangabad. Over the property belonging to CIDCO, i.e. Plot Nos.1 to 7, illegally the Jama Masjid Committee has erected sheds, hotels and garages and they are making illegal earnings. Due to building line setback, CIDCO felt that the lay out needs to be changed/altered to some extent as there was road widening at Jalgaon road. CIDCO has allotted plot Nos.92 and 93 to the petitioner on consideration. There is merger of plot Nos. 92 and 93, making the area of 408.37 sq. meters. There is no illegality in CIDCO's action. The Masjid area is dramatically expanded by illegal construction, that too, on property of CIDCO. This has attempted to proceed close to the area allotted to the petitioner. 7) Learned Counsel for the respondent – Masjid Committee, submits that the Khasra Patrak of the years 1954, 1955 refer to existence of the Jama masjid, which shows occupancy of the land/property by Saleh Begum as owner and Inamdar. The land is shown to be 9 acres and 21 gunthas. Existence of mosque/masjid is reflected in the Government Gazette dated 17th May, 1973. The Surveyor, who caused measurement, has also indicated about encroachment in the Jama masjid property by the petitioner to the extent of 188.75 sq. meters. Learned Counsel refers to letter dated 18.8.1991 by the petitioner -Abdul Gani addressed to CIDCO, wherein he has claimed allotment of plot No.94/95, in N-12 Sector, CIDCO, Roza Bag. In the said letter, the petitioner has indicated to CIDCO that due to road widening 7 AO No.94/2011 programme, 3/4th area of the plot No.93 will be merged in the road and if 3/4th area of the plot is merged, he will be subjected to hardships as he will not be able to construct a house in the left over plot and consequently, it was requested to allot plot Nos.94 and 95 in view of loss suffered by the petitioner due to road widening. 8) Learned Counsel for the Jama Masjid committee submits that in the light of letter dated 18.8.1991, the rights of the petitioner over the plot in question were hanging at least up to 18.8.1991 and he cannot stake claim of possession as of that date. Learned Counsel further submits, there is Wakf registration in favour of the Jama Masjid, which specifies the area of the mosque to be of 1408 sq. meters. This area being sacrosanct needs protection. 9) Though several other issues in consequential to the controversy are repeatedly harped by respective learned counsel, however, they are not dealt with, being of no relevance to the question involved. The reported judgments, concerning fraud, inaction of public authorities, applicability of limitation to file Wakf suit, are also not discussed, as they travel in a area, not required to be addressed at this stage of matters. 10) The legal position in respect of application for grant of injunction is demonstrated in several judgments. Grant of injunction is an equitable relief. A person, who had kept quite for a long time 8 AO No.94/2011 and allowed another to deal with the property exclusively, ordinarily, would not be entitled to an order of injunction. The Court will not interfere only because the property is very valuable one or that the sentiments to it are attached of sect of people. Grant or refusal of injunction though has serious consequences on the issue at hand, however, the court, dealing with such matters, has to make endeavour to protect interest of the properties and also to consider the balance of convenience, irreparable loss and prima facie case. 11) The record, prima facie, illustrate, by virtue of Government Notification, by following the proceedings under the Land Acquisition act, land survey No.7 was acquired for the purpose of new township of Aurangabad by CIDCO. It had laid layout by various plots. Even the area of the mosque/masjid was shown and the Masjid committee was specifically informed that it can get leasehold rights to enjoy the property as per the CIDCO norms/guidelines by paying 50% of the rights being a religious institution. Plot Nos.1 to 7, though belong to CIDCO, were reserved to facilitate movements of devotees of the mosque. The property, as yet, did not change the hands, as claimed by the Jama Masjid committee. In City Survey record, the area of mosque is shown to be of 114.06 sq. metes (CTS No.11547). As on today, there is nothing to stake rights on other area than Masjid had at least in 1971-1972 when city survey was carried. 9 AO No.94/2011 12) The lease agreement and validity of the lease-deed, prima facie, illustrate the petitioner to be the allottee of the two plots, being Plot Nos.92 and 93, admeasuring 408.37 sq. meters. The petitioner is shown to be a licensee. The Municipal Corporation, Aurangabad on 21.4.2008, had issued construction permission in favour of the petitioner. 13) A letter was addressed to the Collector, by Hasham Gafur Patel and others to CIDCO in respect of the disputed properties and threatened to undertake fast-unto-death. In the reply letter dated 8th February, 2010, CIDCO has clarified its stand that the land Survey No.7 of Aurangabad is 9 acres and 14 gunthas and entire area was acquired by the Special Land Acquisition Officer for CIDCO and accordingly, mutation was effected. Plot Nos.92 and 93 were allotted on 8th June, 1977 to the petitioner and he has taken possession after making remittance of lease amount. However, since there was road widening of Aurangabad – Jalgaon Highway, there was setback and consequently, in the property of CIDCO, only area was changed and allotted to the petitioner. It does not include the area, which was allotted to the Jama Masjid. Copy of resolution of the Board was also placed on record. It was informed that by virtue of resolution of the Bord of Directors of CIDCO dated 21.9.1990, an area of 550 sq. meters is proposed to be allotted to the mosque on 50% of the determined price. It was also communicated, if the Masjid Committee pays the amount, the property will be handed over on lease to the Jama Masjid committee. 10 AO No.94/2011 It has ultimately disputed that property belongs to Masjid or to be a wakf. 14) By letter dated 2.2.2009, addressed by Marathwada Wakf Board, whereby the Administrator of the CIDCO was informed to allot the plot Nos.1 to 7 and 92 to the Masjid committee to enable the Wakf Board to make necessary changes in its registration record. This has been disputed by CIDCO, vide its communication dated 1.4.2009. It was again clarified that the Masjid does not come in the area of plot No. 92 and plot No.92 was already allotted to the petitioner. On 2nd September, 2009, the Administrative Officer of the Aurangabad Municipal Corporation has informed the Jama Masjid committee that its representation dated 3rd August, 1999 for terminating the construction permission is rejected as there is no encroachment caused by the petitioner on the property in occupation of Jama Masjid. The construction is carried on plot Nos.92 and 93 which were allotted to the petitioner. The wakf is registered on 7.1.2009 having CTS No.11547, Aurangabad, giving reference to the Government Notification/Gazette dated 17.5.1973, vide Serial No. 26, the property referred is 114.6 sq.meters. 15) Prima facie, the above referred documents illustrate the petitioner to be a lawful allottee of the plots from CIDCO. 16) The Government Gazette dated 17th May, 1973 does not refer to Survey No.7, though it specifically 11 AO No.94/2011 deals with the property in Survey Nos.8 to 22, giving reference to the existence of Dargah, three mosques, grave-yard in the area of 3 acres at Roza Bag. Government Gazette cannot be connected to brand that it to include Survey No.7 at Roza Bag to be of the Wakf. The Wakf Board itself was conscious that it has no document of its ownership in respect of the Masjid and consequently was making correspondence with CIDCO. However, surreptitiously, the Wakf Board took a resolution and decision to include plot Nos.1 to 7 and some area of plot No.93, to be property of Masjid, making the total area of 1408 sq. meters. There is no title document with the Masjid in respect of the plots allotted to the petitioner or any plot belonging to CIDCO. 17) The petitioner has rushed to this Court against the order of ad interim injunction. However, there is no legal bar to entertain the Appeal from Order against such order. It emerges that by virtue of order of stay granted by this Court on 10th June, 2011, the construction activities carried by the petitioner are magnificently multiplied and they are virtually at the stage of completion. The construction activities are carried under the umbrella of the court's protection dated 10th June, 2011. The matter appears to be dragged by the petitioner. Needless to indicate, if the petitioner suffers in the suit initiated by the Masjid committee before the Wakf Tribunal, he has to face the consequences arising out of such orders including demolition of the structure/s affecting the 12 AO No.94/2011 mosque/Masjid area. He will not claim equities. 18) With the above clarification, exparte order passed by learned Presiding Officer, Maharashtra Wakf Tribunal, Aurangabad, dated 16th May, 2011 in Wakf Suit No.38/2011, is quashed and set aside. The Appeal from Order is allowed to above extent. No costs. sd/- (K.U.CHANDIWAL) JUDGE bdv/ fldr.20.12.11