Waqf Dargah Khwaja Sultan Mohd. Chisti Urf Moriwale Baba Through Its Acting President Shri Ismail Kh vs The State Of Madhya Pradesh

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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE

BEFORE
HON'BLE SHRI JUSTICE SANDEEP N. BHATT
rd
ON THE 3 OF JULY, 2026
WRIT PETITION No. 23026 of 2026
WAQF DARGAH KHWAJA SULTAN MOHD. CHISTI URF
MORIWALE BABA THROUGH ITS ACTING PRESIDENT SHRI
ISMAIL KH
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Ajay Bagadia Senior Advocate with Shri Rishi Shrivastava
advocate for the petitioner.
Ms. Pranjali Yajurvedi, Government Advocate for respondent/State.
Shri Sunil Kumar Soni advocate for caveator.
ORDER
Heard on the question of admission.
2. By this petition, the petitioner has prayed for following reliefs:

That it is therefore most respectfully prayed before this Hon’ble
Court to issue writ, order or direction, setting aside the impugned
order dated 16/06/2026 whereby the application filed by the
petitioner under Order 7 Rule 11 of the CPC has been dismissed,
and allow the application of the petitioner and quash the entire
proceedings initiated in case no. 0009/B- 121/2026-27 in the
interest of justice.

3 . Learned senior counsel for the petitioner by referring to the
impugned order dated 16.6.2026 submits that the authority has erred in not
considering the application filed by petitioner under Order 7 Rule 11 of the
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DATT
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Code of Civil Procedure (CPC) as no case is made out for exercising

jurisdiction under the Act by respondent authority. He has referred to the
document dated 25.9.1986 whereby the Indore Development Authority has
issued communication informing the petitioner to use the area admeasuring
360.21 square meter on the condition that there should not be any
encroachment or misuse of the premises in any manner. By referring to the
application filed by present petitioner under Order 7 Rule 11 CPC before the
Sub Divisional Officer, Indore, more particularly by referring to paragraph 8
of said application, he has submitted that there is no cause of action to
initiate such proceedings. He has further submitted that even the respondent
authority has filed the reply to said application wherein also the authority has
not properly denied the contention raised in the application under Order 7
Rule 11 CPC, though lengthy reply is filed by raising several contentions. By
referring to the The Madhya Pradesh Sarvajanik Sthan (Dharmik Bhawan
Evam Gatividhiyon Ka Viniyaman) Adhiniyam, 2001 (for short Act, 2001)
and more particularly Section 6 of the same, learned counsel has submitted
that no enquiry was conducted as required by the Collector and without
following that procedure, further action cannot be taken by the authority. He
has also referred to the order dated 9th July 2024 passed in WP No
17126/2024, whereby this Court has directed the Municipal Corporation
Indore to act upon the notice dated 8.5.2024 and to take further proceedings
in the matter in accordance with law and to conclude the same expeditiously,
preferably within 3 months. He has also submitted that the Collector has no
jurisdiction to decide such issue when the Hon'ble Court has specifically
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directed the Indore Municipal Corporation to decide such issue and

therefore, he has submitted that the impugned order passed by the authority
rejecting the application under Order 7 Rule 11 CPC is bad in eyes of law.
4. Counsel for the caveator/respondent No.3 who has filed objection
before the lower authority has drawn my attention towards objection filed by
him to the application under Order 7 Rule 11 CPC and has referred to
Section 9 of CPC by submitting that as per lexicology, the proceedings
outside of a civil Court are generally not considered as a plaint and a plaint is
a specific legal document used exclusively to initiate a regular civil lawsuit
non civil proceedings use alternative documents like complaints, petitions or
applications. He has further referred to the averments made in the reply,
more particularly para 21, whereby he has disputed certain facts including
the existence of present committee on behalf of whom the petitioner has filed
the petition. It is also submitted that infact the disputed property which is
subject matter of challenge in the present petition is as such not Waqf
property and since the Waqf Act, 1995 has come to existence in 1995 and the
Madhya Pradesh Sarvajanik Sthan (Dharmik Bhawan Evam Gatividhiyon Ka
Viniyaman) Adhiniyam, 2001 was enacted in 2001, therefore, in view of the
principle of Law of Statute the subsequent Legislature will have dominating
effect and it is also well settled position that if both acts are special statutes
and contain an overriding 'non- obstante' clause, the Act that was enacted
later by the Parliament will prevail. The subsequent statute is presumed to be
the most recent legislative intent to address the specific conflict and
therefore, he has submitted that the case of petitioner is required to be
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governed by the subsequent statute of 2001. He has also referred to Section

2(d) of same Act whereby the definition of 'religious' is given and illustrated.
He has submitted that in view of the provisions of Section 3, the case of
petitioner is required to be rejected. He has submitted that infact it is now
well settled law that even assuming that the Civil Procedure Code is squarely
applicable to the present proceedings before the concerned authority, then
also the Order 7 Rule 11 CPC prescribes that the Court has only look into the
assertions made in the plaint and not any written statement or other
documents filed by the parties, therefore the say of the petitioner that the
application filed under Order 7 Rule 11 CPC which is based on their own
submission and the submission which is now agitated by way of resorting to
Section 6 of the Act is never raised before the below authority even in the
application under Order 7 Rule 11 CPC and therefore, it is not permissible to
raise such submission before this Court. He has further submitted that the
enquiry conducted pursuant to the order passed by this Court is already going
on and therefore, it is not true to say that there is no enquiry held by the
authority. He has further submitted that the petitioner has no right or title in
his favour and no document of title is produced on the record, moreover, the
petitioner has constructed almost 14 shops on the premises, in addition to
such Dargah and also creating nuisance by selling mutton etc from such
shops which caused great hardship to the nearby residence of the area. He
has further submitted that as such none of the authority has granted any
permission to construct anything and petitioner has put up construction and
therefore, the case of petitioner is not required to be considered as he has not
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having any right, title or interest in the property in question and therefore,

considering the order passed by the authority which is in consonance with
the provisions of law by considering the rival submissions and therefore, no
interference is called for by this Court.
5. Counsel for the State has opposed the submissions made by the
petitioner by accepting the contentions raised by counsel for respondent
No.3/caveator and has further added that there is no authority or
authorization letter produced on record by present petitioner to file the
present petition on behalf of such committee and by referring to the
judgment dated 15.3.2022 passed by Division Bench of this Hon'ble Court
in WA No. 91/2022 (Swakshtagrahi Sangh Vs. Union of India) specially
paras 7 and 8, it is submitted that such petition is required to be dismissed
with heavy cost which otherwise is not maintainable in the eyes of law and
counsel for respondent No. 3 has also supported the submission made by
counsel for State and has further added in his submission that such
applications and proceedings are filed by present petitioner with a view to
delay the proceeding of enquiry which is directed by this Court to conclude
within 3 months and thereafter much period has been passed and therefore,
no indulgence is required and writ petition deserves to be dismissed.
6. I have considered the rival submissions made at the bar. I have
also considered the provisions of Act 2001. Sections 2, 3 and 6 are
reproduced hereunder below:-
2. Definition-In this Act, unless the context otherwise requires,
(a) building means a house, shop, hut, shed or vessel or other structure or
enclosure whether roofed or not of whatsoever material constructed and
includes every part thereof, all walls, verandahs, platforms, plinths,
doorsteps and the like and a tent or other portable and merely temporary
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shelter;
(b) place means any open space which is not a building;
(c) public used with reference to a building or place, signifies that such
building or place, whether or not acquired, constructed and maintained by
or at the expense of some specified persons or body of persons is not the
private and personal property of such person or body of persons and is
open to the use and enjoyment of the public in general or of a particular
class or section thereof for the purpose, if any, for which it may have been
set apart;
(d) religious when used with reference to a building or place such as
temple, mosque, church, dargah, khankah, math, takiya or the like,
signifies,

(i) that such building is used or intended to be used for the
purpose of religious worship or instruction or offering prayers
(which include Bhajan, Kirtan, Stuti or Namaz) or
performance of any religious rites by persons of, or belonging
to, any religion, creed, sect or class; or
(ii) that such place is likewise used or intended to be used for
social or religious purposes.
Section 3. Restrictions on use of public places for religious purposes- (1)
Except those structure which have been erected before 29th September,
2009 and which are eligible for in situ regularisation in such manner as
may be prescribed by the State Government no person shall use any public
place-
(a) as a permanent religious place; or
(b) save with the previous written permission of the Collector, obtained in
the prescribed manner, as a temporary religious place.
(2) Nothing in this section shall apply to cremation grounds and burial
places or places or to the holding of functions or the taking out of
processions, in connection with deaths or marriages or to other purely
social and secular functions or to religious procession.
Section 6. Power of Collector to direct removal of unauthorised work-
(1) Notwithstanding anything contained in any other provision of this Act
but without prejudice to the provisions of Section 8, a Sub-Divisional
Officer referred to in sub-section (2) of Section 22 of the Madhya Pradesh
Land Revenue Code, 1959 (No. 20 of 1959) or an officer-in-charge of a
Police Station on his own motion or on complaint or otherwise on
receiving information that any work has been constructed in contravention
of the provisions of this Act or of any permission granted thereunder
within his jurisdiction, shall proceed to enquire into the truth of the matter
and if after enquiry comes to the conclusion that the work has been so
constructed, he shall make a report to that effect to the Collector.
(2) Where the Collector on receipt of the report under sub-section (1) or
suo motu, has reason to believe that a work has been constructed in
contravention of the provisions of this Act or of the permission granted
thereunder, he shall issue a public notice in such form as may be
prescribed and publish it in at least two local newspapers of which one
must be in Hindi Language calling upon all the persons interested in the
said construction of work to show-cause within such period as may be
specified therein, why the said work should not be removed, such notice
shall be notified in the locality by beat of drum, by affixing on the
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conspicuous part of the work so constructed and on the notice board of his
office. He shall also cause a notice to be served on the person or persons
(if ascertainable) responsible for the construction of the work.
(3) On or after the expiry of the period specified in the notice in sub-
section (2) the Collector shall hear and decide the objection, if any, and
record the findings on the matter.
(4) If the Collector arrives at the finding that the work is constructed in
contravention of the provisions of this Act or of the permission granted
thereunder, he shall direct the removal of the work so as to restore the
building or place in question as nearly as may be to its original condition.
(5) Subject to the result of any appeal that may be filed where any work is
not removed in compliance with the direction within a period of one
month from the date of such direction of the Collector or of the decision of
appeal, if any, the Collector shall cause such compliance to be made
through such agency as it may deem fit and may recover the expenses
incurred thereby from the person liable to comply such direction.

7 . It is also relevant to refer to the document dated 25.9.1986
(Annexure P-7) which is relied on by the petitioner, whereby permission is
granted to use premises of Dargah admeasuring 360.21 sq.mt. on the
condition that there should not be any encroachment or misuse of the
premises in any manner. It also transpires from the record that initially the
land in question is vested in Indore Municipal Corporation and thereafter
Indore Development Authority. It also transpires that due to the reasons best
known to the present petitioner, further construction is carried out in the
premises and 14 shops are constructed and some other rooms are also
constructed. The photographs which are produced by the counsel for the
petitioner during course of argument also clearly suggest existence of such
construction. When the Court has raised specific query whether any
permission is granted, the petitioner is not having such permission about
construction of such shops or any rooms or any construction on the said
premises. Moreover, when the Court has asked that whether any document is
produced to show his title, the petitioner has failed to show any document
and has submitted that it can be submitted at an appropriate time. But even in
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this petition, nothing is produced by the petitioner. It is undisputed fact that

the authority is bound to follow the procedure and more particularly
provisions of law and while deciding earlier writ petition No. 17126/2024,
this court has directed the Corporation to decide the proceedings within 3
months by completing enquiry. Therefore, in view of the fact that the said
premises which is Dargah is governed by the provisions of The Madhya
Pradesh Sarvajanik Sthan (Dharmik Bhawan Evam Gatividhiyon Ka
Viniyaman) Adhiniyam, 2001, I am agree with the contentions raised by the
counsel for respondents that the present dispute is covered by the said
Adhiniyam and therefore, the Collector is empowered to consider the
application. There is no quarrel about the provisions of Section 6 of the
Adhiniyam but considering the fact that the petitioner has to show his right,
title and interest in the property by producing cogent and convencing
material. It is also required to be noted that no letter of authority is produced
on record and on a query put by the Court in this regard, counsel for
petitioner has submitted that due to high haste such letter of authorization
could not be produced on record.
8. At this stage, paras 7 and 8 of the judgment passed in
Swakshtagrahi Sangh (supra) are reproduced hereunder below:

7. The Division Bench of this court in the matter of Prabhat Vs.
Barkatulla University, has held that a writ petition for enforcement of
the rights of its members, as distinguished from the rights of the
Association as a body, can be filed by the Association acting through
its office bearers or members, whether the Association is registered or
unregistered, incorporated or not, only when the Association can
satisfy the Court that if an adverse decision is given in that petition, all
the members of that Association or “Body of Individuals” will be
bound by the decision. It has also been held that if the same principle
is not followed, immediately after adverse decision, any other
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members of the said Association may come before the Court in an
independent writ petition saying that he has not been heard and he had
not authorized such Association or office bearer or member to
represent him in the litigation.
8. Therefore, to bind the members by the decision in a litigation
brought before the Court on behalf of such members by any
Association, it is necessary - 5 - that such Association must clearly
resolve that who authorized the Association to file such litigation. The
resolution should also mention that the members will abide any
decision rendered in such litigation. In the present case, a perusal of
the resolution clearly shows that the same does not fulfill the stipulated
requirement. Hence, the learned Single Judge has not committed any
error while rejecting the writ petition.


Order 7 Rule 11 CPC reads as under:-

The plaint shall be rejected in the following cases:
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on being
required by the Court to correct the valuation within a time to be fixed
by the Court, fails to do so;
(c) where the relief claimed is properly valued, but the plaint is
returned upon paper insufficiently stamped, and the plaintiff, on being
required by the Court to supply the requisite stamp-paper within a time
to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred
by any law;
(e) where it is not filed in duplicate;
(f) where the plaintiff fails to comply with the provisions of rule 9:
Provided that the time fixed by the Court for the correction of the
valuation or supplying of the requisite stamp-paper shall not be
extended unless the Court, for reasons to be recorded, is satisfied that
the plaintiff was prevented by any cause of an exceptional nature from
correcting the valuation or supplying the requisite stamp-paper, as the
case may be, within the time fixed by the Court and that refusal to
extend such time would cause grave injustice to the plaintiff.

9. Section 2(d) as well as Section 3(1) clearly stipulates that the
respondent authority has power to proceed with such proceedings and since
the enquiry is pending, it seems that the petitioner is trying to delay the
proceedings on one pretext or another. As such the respondent authority has
not committed any grave error in law while deciding the application under
Order 7 Rule 11. The reasons assigned by the respondent authority cannot be
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faulted by raising total new grounds in the present petition that too without

producing any document to show the valid title in favour of the present
petitioner.
10. In these circumstances, I am of the view that granting any relief
as prayed in the present petition will amount to give premium to the
dishonesty or high handedness shown by the petitioner, moreover, on the
ground of the non authorization to file such proceeding by the petitioner. The
issue is squarely covered by the judgment of the Division Bench. The
petitioner has not shown any competency to file the present petition. The
petition deserves to be dismissed as found meritless and this Court is of the
opinion that filing of such proceeding before the authority as well as before
this Court will amount to waste the precious judicial time of the concerned
authority as well as this Court and therefore, this Court is of the opinion that
the petition is required to be dismissed by imposing heavy cost. However
considering the totality of the facts and circumstances of the case, this Court
refrains to impose heavy cost instead of imposing token cost of Rs. 15,000/-
on the petitioner which will be deposited within 7 days before Indore High
Court Bar Association and receipt of same shall be produced with the
Registry by the petitioner.
11. The writ petition is according disposed off.
(SANDEEP N. BHATT)
JUDGE
BDJ

Signature Not Verified
Signed by: BHUNESHWAR
DATT
Signing time: 04-07-2026
13:47:10