Management Committee Waqf & Others vs Ram Prakash Gupta And Others

Ramesh Ranganathan, C.J. (Oral)

Application for Leave To Appeal No. 6818 of 2019

In and AND

Special Appeal No. 522 of 2019

This application is filed seeking leave to prefer an appeal against the order passed by the learned Single Judge in Writ Petition (M/S) No. 1183 of 2012 dated 15.03.2018. The said writ petition was filed by the respondent-writ petitioner seeking a writ of certiorari to quash the notification dated 28.03.2012 (wrongly mentioned in the writ petition as 28.03.2011) issued by the Chief Secretary, State of Uttarakhand to the extent of allotting 2.53 acres of land to Madarsa Mustafa Educational Society in Ward No. 5 Rudrapur, District Udham Singh Nagar; a writ of mandamus commanding respondents 1 to 4 to allot 3 acres of land to the respondent-writ petitioner, and not to interfere with the peaceful possession of the land of the Temple of Shree Chamunda Devi Mandir Temple situated in Purana Khera, Ward No. 5, Rudrapur, District Udham Singh Nagar; and to direct respondents 1 to 4 to record the land of Khera Khatoni holders, mentioned in the writ petition, in the name of Shree Chamunda Devi Mandir Society.

While the respondent-writ petitioner sought, among others, the relief to quash the notification dated 28.03.2012, alloting 2.53 acres of land to Madarsa Mustafa Educational Society, they did not array the Madarsa Mustafa Educational Society as a respondent in the writ petition. Since grant of the relief sought for in the writ petition, which is to quash the notification whereby land was allotted in favour of the Madarsa Mustafa Educational Society, would deprive the said Society of its rights, it was, undoubtedly, a necessary party to the writ petition, and failure of the respondent-writ petitioner to array necessary parties in writ proceedings is fatal and would have necessitated dismissal of the writ petition in limine.

The present application is filed seeking leave to prefer an appeal. While it is, no doubt, true that the applicant has also filed a delay Condonation Application No. 6816 of 2019 to condone the delay of 400 days in preferring the Special Appeal, the question of delay would only arise if a party to the writ proceedings had failed to prefer an appeal, against the order passed in the writ petition, within the stipulated time. As noted hereinabove the applicant, who seeks leave to appeal, was not a party to the writ petition, though it was, undoubtedly, a necessary party thereto.

The request of Mr. B.B. Sharma, learned counsel for the respondent-writ petitioner to grant time, to file a counter affidavit to the application seeking condonation of delay, does not merit acceptance, since delay in preferring the appeal would arise only in the case the applicant was a party to the writ petition, and not in cases where leave to appeal is sought by a person aggrieved by the order under appeal on the ground of non-joinder of necessary parties.

We see no reason, therefore, not to grant the applicant leave to appeal. The application seeking leave to appeal is allowed and, since the question of delay is wholly immaterial, Delay Condonation Application No. 6816 of 2019 is closed.

The order under appeal is set aside on the ground of non-joinder of necessary parties. We, however, consider it appropriate to restore the writ petition to file, wherein the appellant herein shall be arrayed as the fourth respondent, as it is a necessary party to the writ petition. The appellant, now arrayed as the fourth respondent in the writ petition, shall file their counter affidavit therein within a period of three weeks from today. It is open to Mr. B.B. Sharma, learned counsel for the respondent-writ petitioner, to request the learned Single Judge to take up the writ petition for hearing any day after three weeks from today.

Subject to the aforesaid observations, the Special Appeal is disposed of. No costs.

Application for Leave To Appeal No. 5529 of 2019

In and AND

Special Appeal No. 326 of 2019

The appellant herein is not a party to the writ petition and, while it claims to be running the Madarsa, in whose favour Government Order dated 28.03.2012 was issued, we see no reason to entertain this appeal filed by the Management Committee, Waqf since the Madarsa itself has preferred an appeal and has now been arrayed as the fourth respondent in the Writ Petition.

Suffice it to observe that, since the writ petition has now been restored to file, the order now passed by us shall not disable the applicant herein from filing an application to implead itself as a respondent in the writ petition. We have no reason to doubt that, on such an application being made, the learned Single Judge shall consider such impleadment application in accordance with law.

Subject to the aforesaid observations the Special Appeal fails and is, accordingly, dismissed. No costs.

All the pending applications are also disposed of.