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Peru Paltu Ghosi and anr. Vs. Assistant Custodian, Mathura - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 2308 of 1957
Judge
Reported inAIR1961All299
ActsConstitution of India - Article 226
AppellantPeru Paltu Ghosi and anr.
RespondentAssistant Custodian, Mathura
Appellant AdvocateN.A. Rahman, Adv.
Respondent AdvocateN.D. Pant, Adv.
DispositionPetition dismissed
Excerpt:
(i) constitution - right to petition - article 226 of constitution of india - certain property acquired by custodian of evacuee property treating it as evacuee property - appellant contended that property was 'takia' - right to appeal lies with 'waqif' or sunni waqf board - appellants members of sunni waqf board, lucknow - appellant not entitled to file petition - petition dismissed. (ii) alternate remedy - article 226 of constitution of india - right of appeal against order of assistant custodian not availed - writ petition filed after a gap of seven years - copy of order appealed against not filed with petition - petition dismissed. - .....to what their individual rights are and how they are affected. their merely being members of the sunni waqf board does not entitle them to any right.4. according to the petitioners the property was a takia. if it was a property which is tech-nically known as a takia or an endowment under the muslim law, it would be deemed to be a waqf and there would be a waqif. it is the waqif or the mutwalli, who should come to this court for cancellation of the order of the assistant custodian, and nobody else. if the sunni waqf act applies and this could have been taken under the management of the sunni waqf board then the sunni waqf board may have a right to come to this court for any redress. but the petitioners, as i have said, merely because they were members of the sunni waqf board, have no.....
Judgment:
ORDER

V.D. Bhargava, J.

1. This is a petition under Article 226 of the Constitution filed on behalf of two persons, Peru and Abdul Waheed, who claim to be the members of the Sunni Waqf Board, Lucknow, and are acquainted with the facts mentioned in the petition. They say that there was a certain graveyard which has now been acquired by the Custodian of Evacuee Property treating it as an evacuee property. According to their contention it is a graveyard and, therefore, could not be acquired. They have further contended that the property is a takia attached to the graveyard and it can never be declared as an evacuee property.

Therefore, it has been prayed that the order of the Assistant Custodian dated the 22nd of September, 1950, declaring it to be an evacuee property may be quashed and the subsequent proceedings that had taken place may also be quashed. There are several preliminary objections to this writ petition. The first is that the order sought to be quashed is dated the 22nd of September, 1950, and the writ petition was filed only after seven years. Such a heated application cannot be entertained by this Court.

2. The second objection to this writ petition is that the petitioners nowhere in their petition have said, what is their individual right. It is true that Articles 32 and 226 of the Constitution do not lay down as to the person by whom an application for relief under the two Articles can be moved. But according to the observations of his Lordship the Chief Justice Kania, in the Supreme Court case of the State of Orissa v. Madan Gopal, AIR 1952 SC 12:

'The language of the Article shows that the issuing of writs or directions by the Court is founded only on its decision that a right of the aggrieved party under Part III of the Constitution (Fundamental Rights) has been infringed. It can also Issue writs or give similar directions for any other purpose. The concluding words of Article 226 have to be read in the context of what precedes the same. Therefore, the existence of the right is the foundation of the exercise of jurisdiction of the Court under this Article.'

3. It is not the constitutionality or the propriety of a certain order which can be challenged in this Court unless that constitutionality or impropriety affects directly a certain individual's right, but if an individual's right is not affected, an order may be illegal, unconstitutional or void, but a person has no right to come to this Court under Article 226 of the Constitution. The present two petitioners have nowhere in their petition alleged as to what their individual rights are and how they are affected. Their merely being members of the Sunni Waqf Board does not entitle them to any right.

4. According to the petitioners the property was a takia. If it was a property which is tech-nically known as a takia Or an endowment under the Muslim Law, it would be deemed to be a Waqf and there would be a waqif. It is the waqif or the mutwalli, who should come to this Court for cancellation of the order of the Assistant Custodian, and nobody else. If the Sunni Waqf Act applies and this could have been taken under the management of the Sunni Waqf Board then the Sunni Waqf Board may have a right to come to this Court for any redress. But the petitioners, as I have said, merely because they were members of the Sunni Waqf Board, have no right to present this petition.

5. The third preliminary ground is that there was a right of appeal against the order of the Assistant Custodian. Any person, who is aggrieved has a right to file an appeal. If the petitioners think that they had a legitimate grievance, then they should have filed an appeal. They having not availed of that remedy for a pretty long time, cannot be heard after such a long time in writ jurisdiction.

Another defect in entertaining this petition is that the order of the Assistant Custodian dated the 22nd of September, 1950, about which grievance is made, has not been filed at all in this Court. Unless the order, which is challenged, is filed along with the petition, this Court cannot quash that order and, therefore, on that ground also this petition is not entertainable.

6. Lastly, the question that is involved in this petition is a pure question of fact to the effect that the property involved is a graveyard or not. On the evidence which was led before the Assistant Custodian, he came to the conclusion that it was not a graveyard. I am not in a position to say as to what the conclusions of the Assistant Custodian were because that order is not before me. If upon the evidence produced a finding of fact has been given, this Court cannot interfere.

7. In the circumstances, I see no reason to allow this petition which is accordingly dismissed with costs.


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