HAKIM MOHD Vs. UNION OF INDIA

JUDGEMENT

(1.) This petition has been filed under Article 133 of the Constitution of India for the grant of a certificate of fitness for appeal to the Supreme Court, against our order dated November 2, 1972, dismissing the petitioner's writ petition.

(2.) Mr. A. L. Patney, the learned counsel for the petitioner, submits that he had made two-fold prayers in his writ petition, viz. that the respondents be restrained from tang forcible possession of the dargah and that they be further restrained from demolishing the grave and the dargah and other structures. According to him, no decision was given on the question of demolishing of the graves and other structures and that our decision was reached because we were not satisfied that the petitioner was in possession. The contention of the learned counsel, however, is without substance. It is clear from a perusal of our judgment that it was based on an affidavit sworn by the Chief Executive Director, Third Asian International Trade Fair, Ministry of Foreign Trade, annexure R-8, annexed to the reply filed on behalf of the respondents Nos. 1 and 2, where it was specifically stated that the Third Asian Trade Fair authorities had acquired "vacant land comprising of dis-used and abandoned grave-yard" on September 3, 1972. It was also stated that possession had been taken after getting the said dis-used and abandoned grave-yard cleared of unauthorised squatters and further that the land was in possession of the said authorities. It was then categorically asserted that no part of the said land was in occupation of any other person and was in fact under the control of the Land and Development Officer. In view of these assertions, there was no question of restraining any one from demolishing anything as nothing was stated to be existing at the site; and whatever was there, was already under the direct control of the respondents. The petitioner was found not to be in possession. These were all questions of fact, which were found against the petitioner on the evidence available on record. It was in these circumstances that the petition was dismissed. No question of law was involved.

(3.) The only ground on which the prayer for the grant of the certificate is made, is that the value of the property involved in the court of first instance and still in dispute was and is not less than Rs. 20,000/. Mr. Patney, the learned counsel for the petitioner contends that the right of appeal to the Supreme Court, being a vested right is not affected by the amendment of clause (1) of Article 133 of the Constitution effected by the Constitution (Thirtieth Amendment) Act. 1972, herein called the Amendment Act, which came into force on February 27, 1973. He had filed his petition on December 13, 1972. He, therefore, urges that the petitioner is entitled to the certificate under the provisions of law as it existed before the amendment.