@JUDGMENTTAG-ORDER
Shiva Kirti Singh
1. From the judgments and orders annexed with the supplementary affidavit filed on behalf of the petitioner, particularly, from order of Division Bench dated 29.3.2004 passed in LPA No. 1132/2003 contained in Annexure-15, it transpires that after the petitioner succeeded not only before the Collector exercising power under the Wakf Act but also up to the Supreme Court, he had to struggle for getting the order of Collector passed on 9.6.2000 in Misc. Case No. 55/1995 (Annexure-12) executed. Ultimately, a Division Bench of this Court by order contained in Annexure-15 directed that if there is any direction of the Collector in Misc. Case No. 55/1995, the Sub-Divisional Officer shall comply with the same if already not complied, within a period of two months from the date of receipt/production of a copy of that order. From the show cause filed on behalf of District Magistrate, Saran, Chapra, opposite party No. 4, it appears that the opposite parties tried to hand over the possession of concerned Wakf property to the Mutwalli, the petitioner, in view of order of the Collector dated 9.6.2000 which has been annexed as Annexure-A to the show cause but according to the authorities, the petitioner declined to take possession on 25.9.2006. In support of such action a memorandum appears to have been prepared by the Sub-Divisional Officer, Chapra which is annexed as Annexure-B.
2. On behalf of the petitioner a reply to the show cause has been filed to which he has annexed letters written by him to the Sub-Divisional Officer, Sadar, Chapra on 24.9.2006 (Annexure-23) and another letter dated 25.9.2006 (Annexure-23/A). From the letter dated 25.9.2006 it is evident that petitioner declined to take symbolic possession of the premises because the authorities had not evicted the unauthorized occupants from the said premises ignoring the earlier orders passed by the Collector according to which a mortgage created by a predecessor Mutwalli was found to be against law and beyond the powers of the Mutwalli and hence, direction had been issued by the Collector to hand over possession of the concerned property to the present Mutwalli within one month of the order dated 9.6.2000. A perusal of that order shows that some persons had intervened on the basis of alleged rights derived from the mortgagee but the Collector found no substance in their claim and held that those claims had been raised with a view to maintain possession over the property by any means.
3. The memorandum contained in Annexure-B to the show cause has been drafted in a guarded manner and does not show that premises were made free of unauthorized occupation or that possession of vacant premises was offered to the present Mutwalli.
4. In our view no other interpretation was possible of the orders passed by the Collector for the Sub-Divisional Officer and he could not" have made out a case for handing over of symbolic possession while allowing the unauthorized persons to remain in occupation and possession.
5. In view of discussion made above, we grant one further opportunity to the authorities, particularly, the Sub-Divisional Officer, Chapra to take effective action for getting the property in question free from unauthorized occupation. After getting the property free from the possession of all the occupants, he should seal the property in presence of the petitioner or his agent and thereafter a second memorandum should be prepared showing that possession of vacant property had been offered and handed over to the petitioner. Such action should be taken promptly and in any case before the next date. In case the petitioner refuses to take possession of vacant premises, a clear memorandum to that effect should be prepared and produced before this Court on the next date.
6. As prayed by Learned Counsel for the State, let this matter be listed under the same heading on 2.5.2012 before this Bench or any other appropriate Bench, if required, in Chambers.
7. It is made clear that a compliance report showing that directions given in this order have been complied with must be produced before this Court on affidavit by the next date failing which the Sub-Divisional Officer, Chapra and the Collector, Saran at Chapra shall be personally present in court on the next date. Let a copy of this order be furnished to learned SC-1 for communication and compliance.
Later It has been brought to our notice that the last order bearing No. 3 dated 23.11.2011 was signed only by one of us (Shiva Kirti Singh, J.) and due to inadvertent error the file was placed before another Judge who signed in place of V.N. Sinha, J. We clarify that such error shall not have any effect on the validity of that order which shall be treated to be an order passed by this Division Bench. However, let another copy of that order be prepared which shall be signed by both of us for being kept in the order sheet as a part of this order to reflect the correct position for the purpose of records.
Copy of corrected Order No. 3 dated 23.11.2011.
It appears that the matter has arisen out of a judgment and order dated 1.9.1990 passed by the 4th Additional District Judge, Saran in an appeal u/s 36B(4) of the Wakf Act, 1954. That appeal had arisen out of an order passed by the Collector, Saran in exercise of power u/s 36B(2) of the Act directing to deliver the property to the Board within a period of 30 days. The appellate order dated 1.9.1990 was affirmed and two Civil Revisions bearing nos. C.R. 1737 and 1739 of 1990 preferred by Md. Asik and Shri Bharat Prasad respectively were dismissed on 26.9.1995 by this Court. The Supreme Court dismissed the SLP preferred against the orders of this Court by order dated 12.8.1996 passed in SLP (Civil) No. 170 of 1996.
The petitioner is claiming a right in him to get possession of the Wakf property consisting of several shops in capacity of Mutwalli of a private Wakf. The matter relating to petitioner''s claim for possession was required to be disposed of as per order passed by the Collector, Saran in Miscellaneous Case No. 55 of 1995 whereby he had authorized the Sub-Divisional Officer to get the possession of the property handed over to the Mutwalli. To this effect is the order passed by a Division Bench of this Court on 29.3.2004 contained in Annexure-1.
Thereafter contempt petitions were filed and time to time orders were passed but the grievance of the petitioner is that till date he has not been handed over possession of the property in question.
We grant two weeks time to Learned Counsel for the petitioner to bring on record all the relevant judgments and orders which may form part of petitioner''s case. A copy of such supplementary affidavit should be served on the counsel appearing for the State within two weeks and receipt showing service of the same must be filed in the office, failing which this contempt application shall stand rejected without further reference to a Bench.
Learned Counsel for the State shall also seek complete instruction in the matter from the Collector as well as Sub-Divisional Officer concerned within six weeks from today. The views of Collector and orders passed by him in the Miscellaneous Case should be made available to this Court through counter affidavit.
Let this matter be listed under the same heading after six weeks.
On the next date this matter should be listed alongwith records of all the relevant cases in which this Court has passed orders from time to time as appears from various annexures. This will include Civil Revision Nos. C.R. 1737 and 1739 of 1990, writ petitions, SLP and contempt petitions.
