- (1.) THESE two writ petitions since involve common question of facts challenging one and the same order dated 10. 2. 99 of the Chief Judicial Magistrate, Ajmer, who acted as a Receiver to the Dargaha Miran Saheb Taragarh (Ajmer) are being decided by this common order.
(2.) UNDISPUTED facts are that under a Scheme framed by the then Judicial Assistant Commissioner and Subordinate Judge Ist Class Ajmer while deciding a civil suit No. 213/1894 (Najar Ali vs. Gulzar Ali) under judgment and decree dated 27. 10. 1896 (Ann. 1) the Dargah known as `dargah Hajrat Miran Saheb' situated at Taragarh (Ajmer) was being managed by a committee (constituted under that scheme and aforesaid decree), which consisted of three members out of which two are elected by the Khadims of the Dargah while 3rd one is called as President to be nominated by the Court of Civil Judge who is also supposed to resolve internal disputes as to the Khadims who constitute a school of voters for two members of the Management Committee. A dispute at hand arose when an application (WP No. 3607/99) (Ann. 2) was moved by respondent Nos. 1 to 4 (WP No. 896/99) on 6. 1. 99 for inclusion of 32 persons (respondent Nos. 2 to 33 - WP No. 3607/99) by treating them as Khadims of the Dargah in the voters list for the election of the Members of the Management Committee, scheduled to 21. 2. 99 before the Receiver cum Competent Authority of the Dargah, i. e. Chief Judicial Magistrate, Ajmer. Objections were raised by the petitioners on 9. 2. 99 (Ann. 6 WP No. 896/99) contending inter-alia that a suit of these applicants' ancestors for declaration and claiming themselves as Khadims had already been dismissed, against which an appeal has still been pending before the District Judge, Ajmer, therefore, pending decision of that appeal or suit itself the respondent No. 1 to 4 (applicants) have no right to get them enlisted in the voters list as Khadims. These objections of the petitioners and application of respondent Nos. 1 to 4 were decided by the impugned order dated 10. 2. 99 (Ann. 7 WP No. 896/99) though allowing the application for inclusion of 32 persons in the voter list of the election dated 21. 2. 99 as Khadims of the Dargah, but rejecting objection dated 9. 2. 99 of the petitioners. Hence, the petitioners though preferred Civil Revision Petition against the impugned order dated 10. 2. 99 of the Chief Judicial Magistrate, Ajmer but this Court by its order dated 18. 2. 99 holding the impugned order as having been passed by a persona designata, directed to treat Civil Revision Petition No. 172/99 as Writ Petition. Hence, that petition No. 172/99 was registered as Writ Petition No. 896/99 and thereafter similar petition as No. 3607/99 was instituted by the petitioner - Panchayat Khuddam (Sayeed Zadgam) of the Dargah through its Joint Secretary Syed Ramjan Ali impleading 32 persons as respondent Nos. 2 to 33, and thereby claimed same relief as sought in earlier WP No. 896/99 of the objectors for setting aside the inclusion of names of allegedly 32 Khadims (respondents Nos. 2 to 33) in the voters list of the election dated 21. 2. 99 of the Management Committee of the Dargah under impugned order dated 10. 2. 99. The result of election dated 21. 2. 99 was stayed by this Court's order dated 19. 2. 1999. By order dated 12. 4. 99, Syed Salim Ali on his application was directed to be arrayed as respondent No. 6 to WP No. 896/99. The stay order dated 19. 2. 99 continued by extension under orders passed from time to time when the respondents' learned counsel were also directed to file reply to the writ petition but curiously enough no reply has yet been filed despite the fact that the writ petitions were admitted for hearing long back on 12. 12. 2000, when the matter was ordered to be listed for orders on the stay petition on 12. 11. 2001 and thereafter also on various dates the respondents were directed to file reply but all in vain and in the meanwhile stay order dated 19. 2. 99 continued. Ultimately during hearing on the stay petition, on 20. 7. 2001, stay order dated 19. 2. 99 was modified and the Election Officer was directed to count votes and declare the result but not to implement the same and produce it before this Court in a sealed cover. Accordingly, the result of election dated 21. 2. 99 was produced in a sealed envelope by letter dated 1. 8. 01 of the Chief Judicial Magistrate, Ajmer which was opened in presence of the learned counsel for the parties and as per which, two candidates, Syed Shahjad Ali and Ghulam Imam have been declared as Members of the Management Committee from among all the Khadims enlisted in the voters list. Panchayat Khuddam (Syed Zadgam) (petitioner in WP No. 3607/99) is a registered body of Khadims. No doubt, by virtue of the scheme having been framed under a decree dated 27. 10. 1896 in Civil Suit No. 213/1896 (Ann. 1), wherein disputes between Khadims and Muttawalli as to the management of the Dargah affairs had arisen in 1894, the Managing Committee has been represented by two Khadims duly elected among themselves in an election under the supervision of such person as appointed by the Court.
(3.) UNDISPUTABLY Naseer Ali (respondent No. 1) had applied in 1978 for inclusion of some of Khadims in the voters list but that application was dismissed, against which civil suit No. 356/78 was also instituted before the Munsif Ajmer claiming themselves legal heirs of Kherullah for declaring them as khadims and inclusion of their names in the voters list. But, admittedly that suit was dismissed on having abated under order dated 23. 9. 93 and against which an appeal had been filed and has since then been pending before the appellate Court. The applicants (respondents) concealing aforesaid facts, again applied for inclusion of their names in the voters list of Khadims on 6. 1. 99 vide Ann. 2 (WP No. 3607/99) claiming themselves as legal heirs of Khubullah and Kherullah who had shifted to Malva earlier whereby their names could not be there in the voters list and now has since shifted to Ajmer so their names be included. I have heard learned counsel for the parties and considered their rival contentions so also material on record. Despite having afforded various chances to the respondents' learned counsel, no reply to these writ petitions has ever been filed, so this Court has no option except to decide them on the basis of documents placed on record. A careful perusal of the scheme under decree dated 27. 10. 1986 (Ann. 1) makes it crystal clear that the scheme only provides for appointment of the Management Committee by election from among the Khadims but it did not contemplate as to who can be declared as Khadims. The question as to who is Khadim is a question of facts and the claim of the respondent Nos. 2 to 33 (WP No. 360/99) has through out been denied by the petitioners and even one of the petitioners (WP No. 896/99) have already raised objections before the Civil Judge & Chief Judicial Magistrate, Ajmer but the CJM on the basis of some of the affidavits included names of the respondent Nos. 2 to 33 in the voters list under the impugned order (Ann. 7 WP No. 3607/99 ). ;