Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION(CIVIL) NO. 31797 of 2010

Raja Khan      ..   Petitioner

versus

U.P. Sunni Central Waqf Board & Anr. ..     Respondents

O R D E R

Heard learned counsel for the petitioner.

“Something is rotten in the State of Denmark”, said  

Shakespeare in Hamlet, and it can similarly be said that  

something is rotten in the Allahabad High Court, as this  

case illustrates.   

This  petition  has  been  filed  against  the  impugned  

judgment passed by a division Bench of the High Court of  

Allahabad dated 5.8.2010 in Special Appeal  No. 973 of 2010.  

By that judgment the ex-parte interim orders of the Single  

Judge of the High Court dated 11.6.2010 and 18.6.2010 passed  

in Writ Petition No. 34595/2010 have been set aside.

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The brief facts of the case are that there is a Dargah  

known as ‘Dargah Hazrat Syed Salar Masood Ghazi R.A.’ in  

district Bahraich, U.P. which is managed by the Committee of  

Management of Waqf no.19.

The petitioner claims to be the proprietor of circuses  

e.g. Great Gemini Circus, Apollo Circus, Raj Mahal Circus  

and  Asiad  Circus,  and  also  runs  a  Jhoola  (cradle)  for  

entertaining the public at large.  The petitioner  does  

touring  and  runs  the  aforesaid  circuses  and  jhoola  in  

‘Melas’ and other places of public gathering.

In the aforesaid dargah a Mela is held in the month of  

Jeth, known as ‘Jeth Mela’, Bahraich for a period of 40  

days.  It is alleged by the petitioner that in the past  

several years the Waqf has been allotting plot nos.1760 to  

1770  and  1826  to  1834  belonging  to  it  on  lease  to  the  

petitioner for holding the Jeth Mela.  However, in 2010 the  

Waqf refused to allot the said land for Jeth Mela to the  

petitioner.  Hence the petitioner twice filed writ petitions  

in the Lucknow Bench of the Allahabad High Court which were  

dismissed.  It may be mentioned that Bahraich is a district  

in erstwhile Avadh, which is under the jurisdiction of the  

Lucknow Bench of the High Court.

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The petitioner then filed a suit in district Hamirpur  

being Suit no.54/70/10 of 2010 and when an objection was  

raised  about  territorial  jurisdiction  he  filed  the  writ  

petition  being  Writ  Petition  no.34595  of  2010  in  the  

Allahabad Bench of the High Court on which the ex-parte  

interim orders dated 11.6.2010 and 18.6.2010 were passed by  

the Single Judge of the Allahabad Bench of the High Court.   

The order of the single Judge dated 11.6.2010 reads as  follows :

“Issue notice to respondent Nos. 2, 3 and 4.  

The said respondents are directed to  file  counter  affidavit  within  6  weeks.  Rejoinder affidavit, if any, may be filed  within  two  weeks  thereafter.   List  thereafter.   

The  grievance  of  the  petitioner  is  that  for  the  last  several  years  the  petitioner is allotted land for installing  Circus, Jhoola, Merry go round, swing for  amusement  area  for  the  children  and  visitors of Mela in the premises of Dargah  Sharif during the annual Urs in the month  of Jeth (May and June).

Accordingly the respondent Nos. 2, 3  and  4 are  directed to  allot land  in the  Mela  at  waqf  No.  19,  Dargah  Sharif,  Bahraich over Plot Nos. 1760 to 1770 and  1826 to 1884, details of which have been  given  in  the  writ  petition,  to  the  petitioner  for  the  purpose  of  running  Circus, Jhoola, Merry go round swing etc.  If the petitioner pays required rent lease,  the possession of the allocated land shall  be  handed  over  the  petitioner  within  3  days.

      Order Date:- 11.06.2010”.

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The order dated 18.6.2010 reads as follows :

“Heard  learned  counsel  for  the  petitioner  and the learned standing counsel.  

Learned  counsel  for  the  petitioner  has  raised the grievance that despite earlier order  of this Court dated 11.6.2010, the petitioner has  not been allotted land in the Mela area. The very  purpose  of  filing  the  writ  petition  would  be  frustrated if the petitioner is not allotted the  land for running circus/Jhula in the Meal area.

The  District  Magistrate  and  the  Superintendent of Police, Bahraich are directed  to pass appropriate order in compliance of the  order of this court dated 11.6.2010, since the  petitioner has not been allotted land in the Mela  area.   The  very  purpose  of  filing  the  writ  petition would be frustrated if the petitioner is  not allotted the land for running circus/Jhula in  the Mela area.  

The  District  Magistrate  and  the  superintendent of Police, Bahraich are directed  to pass appropriate order in compliance of the  order  of  this  court  dated  11.6.2010  and  allot  appropriate  plot  to  the  petitioner  and  file  affidavit of compliance.   

Put  up  this  case  on  16.7.2010  before  appropriate  bench  for  hearing.   The  concerned  officers or any other senior officer authorized  by  them  shall  file  affidavit  of  compliance  by  28.6.2010.

Order Date:- 18.6.2010”.  

The above orders are shocking to say the least.

We  are  of  the  opinion  that  the  above  two  ex-parte  

interim orders of the Single Judge of the Allahabad High  

Court  were  clearly  passed  on  extraneous  considerations.  

This is for the following reasons :

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(1)The property in question is in the district of Bahraich

which is within the territorial jurisdiction of the Lucknow  

Bench  of  the  Allahabad  High  Court.   Hence,  the  writ  

petition could not have been validly filed or entertained  

in the Allahabad Bench of the High Court in view of the  

decision of this court in  Nasiruddin vs.  State Transport  

Appellate Tribunal AIR 1976 SC 331.

(2)The  writ  petition  was  not  maintainable  because  

ordinarily no writ petition lies against a private body.

(3)By the ex-parte order dated 11.6.2010 the writ petition  

has been practically allowed since by that ex-parte order  

the respondents 2, 3,& 4 (U.P. Sunni Central Waqf Board,  

District Magistrate, Bahraich and Committee of Management,  

Waqf No. 19, Dargah Sharif, Bahraich) have been directed to  

allot the land in the Mela of the aforesaid Waqf at plot  

Nos. 1760 to 1770 and 1826 to 1884 to the petitioner for  

the purpose of running circus, Jhoola, Merry-go-round etc.,  

and possession of the allocated land was directed to be  

handed over within three days.  Subsequently, on 18.6.2010,  

the same single Judge has passed an order directing the  

district Magistrate and SP, Bahraich to take appropriate  

action for compliance of the earlier order.

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It is well settled that by an interim order the final

relief  should  not  be  granted,  vide  U.P.  Junior  Doctors  

Action Committee  vs.  Dr. B. Sheetal Nandwani, AIR 1992 SC  

671  (para  8),  State  of  U.P.  vs.   Ram  Sukhi  Devi,  JT  

2004(8) SC 264 (para6), etc.

(4) The petitioner had earlier filed a writ petition being  

writ  petition  No.  4720(M/B)  of  2010  before  the  Lucknow  

Bench of the High Court which was dismissed on 19.5.2010  

with liberty to approach the district Magistrate by making  

a  representation.   The  petitioner  made  a  representation  

which was decided by the District Magistrate on 21.5.2010  

with the direction to the Committee of Management of the  

Waqf to reconsider the petitioner’s claim for allotment of  

land.  The petitioner then applied to the Committee of the  

Management for grant of a lease and simultaneously filed  

another writ petition being writ petition No. 5245(M/B) of  

2010 before the Lucknow Bench challenging the order of the  

District Magistrate.  This writ petition was dismissed on  

28.5.2010 by the following order of the Division Bench of  

the Lucknow Bench of the Allahabad High Court :

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“Court No. -1 Case:- MISC. BENCH No. – 5245 of 2010 Petitioner :- Raza Khan S/O Fateh Khan Respondent :- District Magistrate / Additional  Waqf Commissioner, Bahraich

Petitioner Counsel:- M. A. Khan Respondent Counsel:- C. S. C., M. Sayeed, U.K.  Srivastava

Hon’ble Pradeep Kant, J.

Hon’ble Ritu Raj Awasthi, J.   

After hearing the argument at length, we  are satisfied that this second writ petition  for the same relief is not maintainable, as  earlier,  the  writ  petition  filed  by  the  petitioners  for  the  same  relief,  has  been  dismissed  as  withdrawn  vide  order  dated  19.5.2010.

Sri Umesh Kumar Srivastava appearing for  the Committee says that in pursuance of the  directives issued by the District Magistrate  in  his  order  dated  21.05.2010,  a  fresh  decision  has  already  been  taken  and  it  has  been sent to the petitioner through registered  post.   

Mohd. Arif Khan, learned Senior Advocate,  appearing for the petitioner says that no such  decision has yet been communicated.   

Copy of the said decision has been handed  over to Sri Mohd. Arif Khan.   

When this Court has refused to entertain  the writ petition filed earlier for the same  relief and though liberty to the petitioner to  approach the District Magistrate or any other  forum,  as  may  be  provided  under  law  being  even, it does not mean that the second writ  petition  seeking  same  relief  will  be  maintainable  after  the  orders  passed  by  the  authority concerned, but it would be open to  the parties to seek their remedy, elsewhere,  as may be provided under law.   

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  The  dispute like this nature, since  cannot be adjudicated in writ jurisdiction, we  did not entertain the earlier petition and for  the same reason, the present petition is also  not maintainable.   

   Mohd. Arif  Khan, lastly submitted that a  direction  be  issued  to  the  Chairman  for  deciding the application moved under Section  70 of the Act. In response, Sri Umesh Kumar  Srivastava,  argued  that  Section  70  is  not  attracted  in  the  matter,  nor  such  an  application is entertainable.  

  We do not intend to enter into this  controversy,  and  leave  it  open  to  the  petitioner, to pursue his application with the  above  observation,  the  writ  petition  is  dismissed.   

Order Date: 28.5.2010”  

The petitioner then filed a Civil Suit being Suit No.  

54/70/10 of 2010 titled ‘Raza Khan  vs. Managing Committee,  

Waqf  No.  19,  Waqf  Dargah  etc.  before  the  Civil  Judge  

(Senior  Division),  Hamirpur.   It  may  be  mentioned  that  

Hamirpur lies within the territorial jurisdiction of the  

Allahabad  Bench  of  the  High  Court  and  not  the  Lucknow  

bench,  whereas  the  property  in  question  is  situate  at  

Bahraich which is under the jurisdiction of the Lucknow  

Bench.    

On  the  suit  being  presented,  the  Munsarim  made  a  

report that the  suit  was  not  cognizable at Hamirpur for

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lack of territorial jurisdiction.  The petitioner took time  

to file a reply/objection against the said report.  Instead  

of  filing  a  reply,  he  filed  a  writ  petition  in  the  

Allahabad bench of the High Court being writ petition No.  

34595  of  2010  on  which  the  orders  dated  11.6.2010  and  

18.6.2010 have been passed.

In our opinion, the Division Bench of the High Court  

has  rightly  set  aside  the  interim  orders  of  the  Single  

Judge dated 11.6.2010 and 18.6.2010 as these interim orders  

were clearly passed on extraneous considerations.

The faith of the common man in the country is shaken  

to the core by such shocking and outrageous orders such as  

the kind which have been passed by the Single Judge.

We are sorry to say but a lot of complaints are coming  

against certain Judges of the Allahabad High Court relating  

to their integrity.  Some Judges have their kith and kin  

practising in the same Court, and within a few years of  

starting practice the sons or relations of the Judge become  

multi-millionaires,  have  huge  bank  balances,  luxurious  

cars, huge houses and are enjoying a luxurious life.  This  

is  a  far  cry  from  the  days  when  the  sons and other

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relatives  of  Judges  could  derive  no  benefit  from  their  

relationship and had to struggle at the bar like any other  

lawyer.

We do not mean to say that all lawyers who have close  

relations as Judges of the High Court are misusing that  

relationship.  Some are scrupulously taking care that no  

one should lift a finger on this account.  However, others  

are shamelessly taking advantage of this relationship.

There are other serious complaints also against some  

Judges of the High Court.

The  Allahabad  High  Court  really  needs  some  house  

cleaning (both Allahabad and Lucknow Bench), and we request  

Hon’ble  the  Chief  Justice  of  the  High  Court  to  do  the  

needful,  even  if  he  has  to  take  some  strong  measures,  

including recommending transfers of the incorrigibles.

We entirely agree with the view taken by the Learned  

Division Bench in the impugned judgment.  In view of the  

foregoing,  we  find  no  merit  in  this  petition  which  is  

accordingly dismissed.

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Let a copy of this order be sent to the Registrar  

Generals/Registrars  of  all  High  Courts  for  being  placed  

before  Hon’ble  the  Chief  Justice  of  the  respective  High  

Courts.

         ...................J. (Markandey Katju)

..................J. (Gyan Sudha Misra)

New Delhi; 26 November, 2010.