SCA/8446/1995 of WAGHAI SUNNI MUSLIM JAMAT TRUST Vs COLLECTOR on 12 October 1995

ORAL JUDGMENT

The show-cause notice issued by the Collector of Dangsat Ahwa (the Respondent herein) on 21st/24th July 1995 and theinterim direction issued by him on 4th/6th August 1995 are underchallenge in this petition under Art. 226 of the Constitutionof India. By the impugned show-cause notice, the petitioner iscalled upon to show cause why the land granted to the petitioner should not be resumed for breach of Condition No. 8. By theinterim direction, the petitioner is prevented from making anyconstruction on the land granted to the petitioner.

2. The facts giving rise to this petition move in a narrow compass. The petitioner is a Trust registered under the BombayPublic Trust Act, 1950. Its Registration No. is B-2 Dangs. Itcarries on various educational activities including running amadressa (that is, a school). It applied for land for thepurpose of its school. Land bearing Survey No. 629 in alladmeasuring 477.99 square meters came to be granted by therespondent by the order passed on 16th March 1995 on certainterms and conditions. Its copy is at Annexure C to thispetition. It appears that the respondent got information thatwhatever construction was made was used by the petitioner forthe purposes different from the purpose for which it wasgranted. Thereupon one show-cause notice came to be issued on21st/24th July 1995 calling upon the petitioner to show causewhy the land in question should not be resumed. Its copy is atAnnexure A to this petition. With a view to preventing furtherconstruction activity on the land in question, the respondentissued one inter.............................

construction on the land in question. Its copy is at Annexure Bto this petition. The aggrieved petitioner has thereuponapproached this court by means of this petition under Art. 226of the Constitution of India for questioning its correctness.

3. Since the petitioner has been prevented from making anyfurther construction by the interim direction contained in theorder at Annexure B to this petition, by consent of the learnedlawyers appearing for the parties, this petition is taken up forits final hearing and disposal today itself.

...............................(sca.8446.95 #2).......................................(sca.8446.95 #2)........................................(sca.8446.95#2)........................................(sca.8446.95 #2).................4. So far as the show-cause notice at Annexure A to thispetition is concerned, it does not furnish particulars as to howthe land or the construction raised thereon is used for apurpose different from the purpose for which it was granted bythe order at Annexure C to this petition. Besides, user of theland in question for a purpose different from the purpose forwhich it is granted could not be said to be violative ofcondition No. 8 of the order at Annexure C to this petition.Learned Assistant Government Pleader Shri Patel for therespondent submits that violation is of condition No. 8 of theorder passed on 30th July 1991 by which the land was granted tothe petitioner. He has shown to me a copy of the said order.Anyway, I have perused that order and it is difficult to come tothe conclusion that by user of the land for the purpose different from the one for which it is granted would not amountto violation of condition No. 8 thereof. That apart, thepetitioner has clearly averred in this petition that the land inquestion and the construction raised thereon are used only forthe purpose of a madressa (a school) and for no other purpose.It is not shown by or on behalf of the petitioner as to for whatother purpose the land or the construction thereon is used. Theimpugned show-cause notice can therefore be said tobe vague. Itcannot therefore be sustained in law.

4. Learned Assistant Government Pleader Shri Patel for therespondent points out to me the order at Annexure B to thispetition giving interim direction against further constructionthat the different user was indicated therein and that was as amosque. The petitioner in this petition has clearly averredthat no mosque is built in the land in question and it proposesnot to build any mosque thereon. Learned Counsel Shri Mehta forthe petitioner has stated that the plan of the building has beenapproved by the respondent and the petitioner will carry onconstruction strictly according to the said plan.

5. It has been urged by Shri Mehta for the petitioner thatoccasional prayers are offered in the construction raised on theland in question. It has been urged that, since there is nomosque in the small town, people often offer prayers incongregation. Offer of prayers in congregation at a place wouldnot certainly convert that place into a mosque. It may not beuncommon that a room in a house or a railway platform or a traincompartment is used for offering prayers in congregation. Thatwould not convert such house or railway platform or traincompartment into a mosque. The concept of a mosque is differentfrom any and every place used for offering congregationalprayers. It is not the case of the respondent that theconstruction on the land in question is used for pronouncingazaan at the time of the prayers from the house-top. In fact,in a mosque an azaan is pronounced from a minaret. Besides, thepetitioner has clearly averred in this petition that, unlike amosque, the petitioner has not made any mehrab (a separate placesignifying the direction to which prayers have to be offered) inthe construction raised on the land in question. In a mosque, amehrab is usually a must, as submitted by learned Counsel ShriMehta for the petitioner.

6. I am told by learned Counsel Shri Mehta for thepetitioner on the strength of para 4 of the petition that thepetitioner has applied for grant of land for the purpose ofraising a mosque. That would by itself go to show and tosuggest that the construction raised on the land in question isnot being used as a mosque.

Pleader Shri Patel for the respondent, ordinarily this courtdoes not interfere at the stage of a show-cause notice. In thiscase however the show-cause notice is found to be vague. Nouseful purpose will be served by directing the petitioner toappear before the authority and to show cause why the suggestedaction should not be taken. It would be quite difficult for thepetitioner to cause a reply to such vague show-cause notice. Inthat view of the matter, I have thought it fit that this courtshould interfere at the stage of the show-cause notice itself soas to avoid any future complications in that regard.

8. So far as the interim direction at Annexure B to thispetition is concerned, it is obviously pursuant to theshow-cause notice at Annexure A to this petition. If theshow-cause notice at Annexure A to this petition is notsustainable in law, the interim direction cannot survive.

9. In this connection a reference deserves to be made tothe Division Bench ruling of this court in the case of VasantlalChhotalal Khandwala v. The State of Gujarat and Others reportedin AIR 1994 Gujarat 26. This court held therein that no interimdirection can be issued without initiation of any proceedingunder sec.34 of the Urban Land (Ceiling and Regulation) Act,1976 by means of a show-cause notice. By analogy, the aforesaidprinciple of law enunciated by this court in its aforesaidDivision Bench ruling will be applicable in the present case.The interim direction by the order at Annexure B to thispetition cannot independently survive.

9. In the result, this petition is accepted. Theshow-cause notice issued by the collector of Dangs at Ahwa on21st/24th July 1995 at Annexure A to this petition is quashedand set aside and so also the interim direction issued by theorder passed on 4th/6th August 1995 at Annexure B to thispetition. Rule is accordingly made absolute with no order as tocosts.

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