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IN THE HIGH COURT OF BOMBAY
P.S. Patankar, J.
Yusuf Ajij Shaikh and others .....Appellants.
Versus
The Special Land Acquisition Officer, and others.....Respondents.
Second Appeal No. 221 of 1986, decided on 7-7-1994.
Advocates appeared:
H.A. Kazi with Zaheer Khambatta, for appellants.
R.G. Ketkar with R.N. Dhorde, for respondent No. 2.
D.A. Nalawade, A.G.P., for respondents Nos. 1 3.
C.G. Patil, for respondents 4 (a to d).
The provision of Order 1, Rule 8 (9) lays down that where such permission is granted to file a suit in a representative capacity then it is mandatory to give notice of the institution of suit to all persons interested either by personal service or by advertisement as directed by the Court. They do not deal with the position where such a permission is not granted. Order 1, Rule 8 (1) is an enabling provision. If permission is granted then the effect thereof is mentioned in Order 1, Rule 8 (6) which provides that a decree passed in a representative suit under this Rule shall be binding on all persons on whose behalf or at whose benefit the suit is instituted or defended. In other words, the effect of not granting such a permission would be that the decree would be binding only on the applicants who are parties to the suit. The learned Advocate for the Appellants drew my attention to certain averments which are made in the plaint to indicate that it was a representative suit. But merely because some averments are made it cannot become a representative suit and can acquired such a character. The permission is required to be granted by the Court under Order r, Rule 8 (1). Secondly, the said order was not challenged further and no prejudice is shown to have caused to the Appellants by refusal of such permission. No application Was made in the Court below or in this Court to grant such permission.
Section 4(1).
See Places of Worship (Special Provision) Act, 1991-Sections 3, 4 & 6.
Section 4(1) & 6(1)-Inquiry under-Its scope.
The learned Advocate appearing for the Appellants relied upon Para 101 of the Manual of Land Acquisition for State of Maharashtra. It provides that when the Acquisition Officer cannot save Government from a possible conflict with religious sentiment by modifying the original proposition, his next endeavour will be to make a tactful negotiation with the parties.
It also makes a further reference that special care is required in cases of congeted areas and street improvements. First, this part does not prohibit acquisition of land but only shows a desire to safeguard the religious sentiments of a community. It provides that some generous compensation should be paid in such cases. It does not provide that public interest should be lost sight of and there should be no acquisition for protecting the religions sentiments of a community. Secondly, these are only guidelines given to the Acquisition Officer having no legal force. Obviously, they are to be taken into consideration by the Acquisition Officer when the enquiry under Section 5-A is held and it is not for the Court to interfere.
PLACES OF WORSHIP (SPECIAL PROVISION) ACT, 1991
Sections 3, 4 & 6 - land Acquisition Act, 1894, Section 4 (1)-Road widening-Acquisition of Dargah and a mosque for-Such acquisition if not banned by Act, 1991?
Held, in this case land is sought to be acquired under the provisions of the Land Acquisition Act. No provisions of the places of Worship Act bans such acquisition expressly or impliedly. The provisions of the Land Acquisition Act are not purpose of prohibit and punish one section or community who illegally takes over the land of religious worship of another community or section and charges its character. It is not possible to accept the submission that acquisition of land under the Land Acquisition Act loses its character and therefore prohibited. Under this Act, conversion contemplated by Section 3 is by persons of the place of worship of one community or section to religious place of worship of some other community or section. It is not mere conversion as denied.
This legislative intent is clearly discernible and done with a view to see that communal harmony is disturbed by such acts of one community or section or denomination. The injunction under Section 4 (1) is for the people of all communities to see that the religious character of a place of worship existing on the 15th day of August, 1947 is maintained and continued and thereo is no conversion. This cannot cover in its sweep the acquisition of land under the Land Acquisition Act. It is not merely because there is a loss of Dargah or the Mosque this would amount to conversion in view of Section 3. This is also clear from Section 6 which prescribes punishment to those persons who indulge in such conversion.
2. The property bearing C.T.S. No. 327 from Raviwar Peth, Bohari Ali, Pune, is situated in the midst of the road passing east-west and belongs to a religious trust known as Subhansha Dargah and Masjid Trust - a registered Public Trust. The property is known as Subhansha bungalow and situated in a congested area.
3. Pune Municipal Corporation took into consideration bottlenecks to the traffic due to the said structure and passed a resolution for acquiring the same for road widening. The proposal was made to the Government and at that time instead of acquiring the whole, part of the land came to be acquired admeasuring about 274 sq. ft. from the north side. Award came to be passed in that respect on 29-6-1966. However, the Corporation was asked to make study about the traffic and submit fresh proposal if necessary. The Municipal Corporation found partial acquisition totally insufficient to clear the difficulties of traffic bottlenecks. It was found that there was fast expansion and, therefore, fresh proposal was made for acquisition. Notification under section 4 of the Land Acquisition Act was issued on 5-2-1970 for acquisition of the remaining property. Notices came to be issued to the trustees of the Trust and the objections came to be heard by the Land Acquisition Officer under section 5A of the Land Acquisition Act. The objections were turned down and section 6 Notification came to be issued on 27-6-72 and an award came to be passed on 3-9-1974.
4. The appellants have challenged the second Award in the suit filed by them. The appellant No. 1 is a trustee and appellants Nos. 2 to 4 are members of the Muslim community. The acquisition was challenged mainly on the following grounds :
(i) There can be no second acquisition;
(ii) it was malicious and therefore, illegal;
(iii) the property is more than 200 years old and covered by the provisions of the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (hereafter referred to as the Ancient Monument Act). As such it is an ancient monument and structure of Archaeological importance and, therefore, the same cannot be acquired.
5. In the written statement filed on behalf of the respondents, allegations regarding malafides came to be denied. It was contended that the Corporation originally required for road widening entire land admeasuring 764 sq. ft. of area. It was necessary for clearing the bottleneck in the traffic. However, the Government acquired 274 sq. ft. and deleted portion of Dargah and Mosque and directed the Corporation to study the effects of traffic after widening the road from the north side which land was acquired. Liberty to submit fresh proposal was given. The Corporation found partial acquisition totally insufficient and hence fresh proposal was made. Enquiry was conducted by the Land Acquisition Officer under section 5A and the various contentions raised by the trustees were negatived. It was denied that the structure is covered by the Ancient Monument Act.
6. All the three contentions raised on behalf of the appellants came to be negatived by both the Courts below. The lower appellate Court further held that the suit was filed by the appellants in their individual capacity and not in the representative capacity. It was not on behalf of any particular community and the application filed to convert suit as representative was rightly rejected by the trial Court.
7. The learned Advocate appearing for the appellants raised four points in support of his appeal.
(1) He first submitted that in view of the new enactment by the Central Legislature i.e. The Places of W
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