Gujarat High Court
Katariya Usmangani Hajibhai Trustee Of ... vs State Of Gujarat on 2 April, 2025
NEUTRAL CITATION
C/SCA/1529/2025 JUDGMENT DATED: 02/04/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1529 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE Sd/-
================================================================
Approved for Reporting Yes No
================================================================
KATARIYA USMANGANI HAJIBHAI TRUSTEE OF HAZRAT JALALSHAH
PIR DARGAH TRUST
Versus
STATE OF GUJARAT & ORS.
================================================================
Appearance:
MR AFTABHUSEN ANSARI(5320) for the Petitioner(s) No. 1
MR MOHAMMED ARKAM G SHAIKH(9840) for the Petitioner(s) No. 1
MR GK VIRK GOVERNMENT PLEADER ASSISTED BY MS DHARITRI
PANCHOLI AGP WITH MR MAYANK CHAVDA AGP for the Respondent(s)
No. 1,4,5
================================================================
CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
Date : 02/04/2025
ORAL JUDGMENT
1. The present Special Civil Application has been filed praying for the following reliefs:-
"10(A) THIS HON'BLE COURT MAY BE PLEASED TO admit and allow this petition by issuing the writ of mandamus or any other appropriate writ, order or direction to quash and set aside the impugned order dated 27th January, 2025 issued by the respondent no.2 annexed as Annexure-A. (B) Pending admission and final hearing of this petitioner, this Hon'ble Court may be pleased to stay the execution, implementation and further operation of impugned order dated 27 th January, 2025 Page 1 of 18 Uploaded by KAUSHIK D. CHAUHAN(HC00197) on Thu Apr 03 2025 Downloaded on : Thu Apr 03 21:59:11 IST 2025 NEUTRAL CITATION C/SCA/1529/2025 JUDGMENT DATED: 02/04/2025 undefined issued by the respondent no.2. annexed as Annexure-A."
2. The brief facts of the present case are that, the petitioner is a trustee of the Hazrat Jalal Shah Pir Dargah Trust ["Trust" for short]. That the said Dargah/Mazar is constructed on the grave of Sufi Saint Hazrat Jalal Shah Pir which is integral part of the kabristan of muslims of Anandpar Village and some of surrounding villagers. That the Dargah/Mazar on the grave of the said Sufi Saint was constructed and renovated from time to time in order to preserve it. The said Dargah/Mazar has lots of devotees and annual Urs is also being conducted and celebrated there. That the said Dargah/Mazar is registered as Wakf Estate bearing Waqf ID GJ031348 and Aukaf register Sr. No.031148 which is registered on 26.03.1963. The said Dargah/Mazar is in existence since ancient time and has historical significance. That the said Dargah/Mazar is situated on the Rajkot-Ahmedabad National Highway No.27. The said Dargah/Mazar is clearly separated by the service road as well as is 15 feet away from the main highway. That due to construction of National Highway and other surrounding developments, the Dargah/Mazar and surrounding area became uneven creating a descending flow from the highway towards the Dargah/Mazar and due to such condition, during monsoon, the water flows from the road and Page 2 of 18 Uploaded by KAUSHIK D. CHAUHAN(HC00197) on Thu Apr 03 2025 Downloaded on : Thu Apr 03 21:59:11 IST 2025 NEUTRAL CITATION C/SCA/1529/2025 JUDGMENT DATED: 02/04/2025 undefined enters in the Dargah/Mazar. Therefore, the Trust decided to renovate the Dargah/Mazar and to construct the proper flooring and structure so that the grave of the Sufi Saint can be prevented from the damage. For the said purpose, necessary permission was sought from Shri Anandpar (Navagam) Gram Panchayat and the permission came to be granted by the said Gram Panchayat vide letter dated 03.04.2024. That the construction is about to get completed and during such process, no hindrance or disturbance has been caused by any person and all the necessary safety precautions have been taken to ensure that there no disturbance to the traffic of the highway as might be caused. That the notice dated 09.01.2025 came to be issued by the respondent No.2 Dy. Executive Engineer. Thereafter, subsequently, the respondent No.2 Dy. Executive Engineer issued a subsequent notice dated 18.01.2025 to remove the structure under construction. That thereafter the petitioner made a detailed representation on 24.01.2025 which came to be decided by the order dated 27.01.2025.
Aggrieved, the petitioner has filed the present Special Civil Application.
3. Learned counsel for the petitioner submitted that the Page 3 of 18 Uploaded by KAUSHIK D. CHAUHAN(HC00197) on Thu Apr 03 2025 Downloaded on : Thu Apr 03 21:59:11 IST 2025 NEUTRAL CITATION C/SCA/1529/2025 JUDGMENT DATED: 02/04/2025 undefined Dargah/Mazar is an ancient structure. The said Dargah/Mazar is registered as Wakf Estate bearing Waqf ID GJ031348 and Aukaf register Sr. No.031148 on 26.03.1963. The said Dargah/Mazar is also registered under the Public Trust Act having serial No.B-148. The said Dargah/Mazar is also allotted PAN No.AADTH0545E by the Income Tax Department. Being the shrine of Sufi Saint Hazrat Jalal Shah Pir Valiullah, it has its own significance and has a history of more than 100 years. He submits that the said Dargah/Mazar is situated near the National Highway No.27, but it is at a distance of several feet from the boundary of the last lane of the said Highway and is separated by service road as well as open space of more than 15 feet. He submits that due to the construction of the National Highway and other surrounding developments, the surface of the said Dargah/Mazar and surrounding area became uneven and the surface of the said Dargah/Mazar became a descending slop from the road towards the said Dargah/Mazar, due to which during monsoon the water used to flow from the road and enter in the graveyard and said Dargah/Mazar. Therefore, the petitioner Trust decided to renovate the said Dargah/Mazar again and to construct proper flooring and create a proper structure of said Dargah/Mazar so that the grave of the Sufi Page 4 of 18 Uploaded by KAUSHIK D. CHAUHAN(HC00197) on Thu Apr 03 2025 Downloaded on : Thu Apr 03 21:59:11 IST 2025 NEUTRAL CITATION C/SCA/1529/2025 JUDGMENT DATED: 02/04/2025 undefined Saint in the graveyard or Kabristan can be prevented from damage due to flow of water during monsoon. Accordingly, necessary permission was also sought from the Anandpar (Navagam) Gram Panchayat. The said Gram Panchayat by letter dated 03.04.2025 has granted permission for the construction of the new structure of the said Dargah/Mazar. The said Dargah/Mazar is situated in the muslim graveyard where there are several old graves dating from 1923 onwards which have also been inspected by the Archaeological Survey of India. He submits that for the last more than 40 years, necessary applications have been made by the trustees and social workers to designate the said land as graveyard of muslims. Various inter departmental communications between the authorities have also taken place to designate the said land as graveyard and the same are pending consideration. That the revenue authorities have also drawn various Panchnamas in the year 1984, 2004 and 2006 for the purpose of fencing, cordoning and to record the status of the graveyard situated there. He submits that in the year 2005, the Archaeological Department inspected the ancient grave besides the said Dargah/Mazar on which year 1928, 1930, 1946, 1951, etc. were written. He submits that the respondent No.5 Mamlatdar has submitted a report to the Page 5 of 18 Uploaded by KAUSHIK D. CHAUHAN(HC00197) on Thu Apr 03 2025 Downloaded on : Thu Apr 03 21:59:11 IST 2025 NEUTRAL CITATION C/SCA/1529/2025 JUDGMENT DATED: 02/04/2025 undefined respondent No.2 Dy. Executive Engineer that the nature of the land is Government waste land. Despite the communications of the revenue authorities that the land of the graveyard can be considered as waste land, learned advocate for the petitioner submits that various Panchnamas and records establish that there is a graveyard and the said Dargah/Mazar is at the disputed place since ancient time. He further submits that the said Dargah/Mazar is even recognized by the Panchayat, Taluka and District authorities since decades and even the said Dargah/Mazar is also taxed by the Municipal Authorities and permission is given to hold Urs by the office of the District Collector from time to time. The said Dargah/Mazar has electrical connection and pays its electricity bills and has a telephone connection too. He further submits that the said Dargah/Mazar is being targeted and notice of demolition has been issued to the Trust on the basis of the communication dated 03.01.2025 written by the respondent No.4 Collector to the respondent Nos. 2 and 3. He submits that issuance of such notice is discriminatory as there are temples also adjoining to the main highway or the road. He submits that the ancient Dargah/Mazar is otherwise legal and integral part of the graveyard and is well recognized by all the concerned Page 6 of 18 Uploaded by KAUSHIK D. CHAUHAN(HC00197) on Thu Apr 03 2025 Downloaded on : Thu Apr 03 21:59:11 IST 2025 NEUTRAL CITATION C/SCA/1529/2025 JUDGMENT DATED: 02/04/2025 undefined authorities. That the procedure for designating the land as graveyard has been going on for more than 40 years, such action or demolition is malafide, discriminatory and arbitrary. He submits that the present Dargah/Mazar also does not feature in the official list of 191 illegal religious structures to be removed as submitted the State Government in a pending Public Interest Litigation in the High Court. He submits that there is a temple at serial No.142 in the list of illegal structures submitted to the Hon'ble Court which is situated about 1 km. away on the same Highway, yet no action has been initiated against it. He submits that the selective targeting of the said Dargah/Mazar is without any substantive cause of action and and reflects biased approach. He submits that the issuance of notice amounts to unreasonable classification and renders the action of the respondent authorities unsustainable in law. He submits that the notice/order of demolition is in contravention of the provisions of law as it is Waqf property registered with the Waqf Board and the land on which the said Dargah/Mazar is situated does not belong to the Highway Authority. He submits that during the construction of the service road and several bridges, the Trust had handed over possession of substantial portion of the land being used as graveyard in public interest and still the Page 7 of 18 Uploaded by KAUSHIK D. CHAUHAN(HC00197) on Thu Apr 03 2025 Downloaded on : Thu Apr 03 21:59:11 IST 2025 NEUTRAL CITATION C/SCA/1529/2025 JUDGMENT DATED: 02/04/2025 undefined authorities are targeting the said Dargah/Mazar and the construction being put thereon for demolition. He submits that subsequent to the issuance of such notice, 257 individuals from muslim community have signed the representation confirming that their relatives have been buried in the graveyard where the said Dargah/Mazar is situated and there is overwhelming evidence of continued and long standing graves on the site as a muslim kabristan. He, therefore, submits that the impugned notice and the order of removal / demolition of the said Dargah/Mazar is bad in law. He, therefore, submits that the present Special Civil Application be allowed.
4. Per contra, Mr. G.H.Virk, learned Government Pleader appearing for the respondents submitted that the land in question is a Government waste land. Further, the said land came to be acquired for the purpose of National Highway. He submits that Section 3A Notification under the National Highways Act, 1956 ["Act of 1956" for short] came to be published on 25.10.2018. He submits that thereafter, vide Notification under Section 5 of the Act of 1956 dated 29.10.2018, it is the responsibility of the Central Government to develop and maintain the National Highway and in the present Page 8 of 18 Uploaded by KAUSHIK D. CHAUHAN(HC00197) on Thu Apr 03 2025 Downloaded on : Thu Apr 03 21:59:11 IST 2025 NEUTRAL CITATION C/SCA/1529/2025 JUDGMENT DATED: 02/04/2025 undefined case, it is exercisable by the State Government. Thereafter, Section 3B Notification came to be published on 02.01.2019. He submits that the land has been duly acquired by law for the purpose of National Highway No.27. He submits that the Executive Engineer, National Highway Sub-Division, Rajkot is entrusted with the maintenance of the said National Highway. 4.1 Learned Government Pleader submits that as per the details available in respect of the petitioner Trust, area under occupation is '0' Acre as per the annexures annexed to the petition by the petitioner. He further submits that thereafter on April-2024, the report of the Waqf shows that the land type has house and 2 rooms having an area of '0' sq. yds. He submits that now the Trust is proposing to build a huge structure encroaching upon the boundaries of the National Highway. He submits that the Archaeological Survey of India by its communication dated 20.04.2005 has written to the Trust that the said sites are not of archaeological importance as they are not ancient sites. He has submitted that all the land records show that the subject land is still a Government waste land. He submits that the petitioner now wants to create a new structure which is a huge structure and is encroaching upon the margin Page 9 of 18 Uploaded by KAUSHIK D. CHAUHAN(HC00197) on Thu Apr 03 2025 Downloaded on : Thu Apr 03 21:59:11 IST 2025 NEUTRAL CITATION C/SCA/1529/2025 JUDGMENT DATED: 02/04/2025 undefined land of the National Highway which is acquired land and the said construction is not at all permissible since it would hinder the traffic on the National Highway and cause danger to the public at large. He submits that as soon as the construction commenced and it came to the notice of the respondent No.2, a notice for removal of encroachment was issued to the petitioner Trust since it was in violation of Section 24 of the National Highways Act, 2002, which provides for prevention of occupation of highway land. He submits that earlier records show the structure to be a very small structure, but now by encroaching upon the National Highway land, the petitioner is trying to create a huge structure and cause permanent traffic hurdle on the National Highway. In support of his contention, learned Government Pleader has relied upon the judgment of the Apex Court in Civil Appeal Nos.14604-14605 of 2024 dated 17.12.2024 - Rajendra Kumar Barjatya & Anr. v. U.P. Avasevam Vikas Parishad & Ors. wherein it has been held that the constructions put up in violation of or deviation from the building plan approved by the local authority and the constructions which are audaciously put up without any building planning approval, cannot be encouraged. Each and every construction must be made scrupulously following and Page 10 of 18 Uploaded by KAUSHIK D. CHAUHAN(HC00197) on Thu Apr 03 2025 Downloaded on : Thu Apr 03 21:59:11 IST 2025 NEUTRAL CITATION C/SCA/1529/2025 JUDGMENT DATED: 02/04/2025 undefined strictly adhering to the Rules. In the event of any violation being brought to the notice of the Courts, it has to be curtailed with iron hands and any leniency afforded to them would amount to showing misplaced sympathy. He has further relied upon the judgment of this Court in Special Civil Application Nos. 496 of 2025 and connected matters dated 04.02.2025 wherein the coordinate Bench of this Court has considered the issue as to whether merely by usage of lands in question for a particular purpose, when admittedly the lands are not owned by the petitioner, can they be considered to be Waqf property of the petitioner Trust. The coordinate Bench relying upon the judgment of the Apex Court and in particular Rajendra Kumar Barjatya & Anr. (supra) has held that such constructions which are put up in violation of or deviation of the rules and building plan, cannot be encouraged. He submits that the writ petition is intended to protect the illegal structure and encroachment on National Highway land creating public hurdle and the same should be dismissed.
5. Heard learned counsels for the parties and perused the documents on record.
6. The petitioner Trust is a duly registered trust having Wakf Page 11 of 18 Uploaded by KAUSHIK D. CHAUHAN(HC00197) on Thu Apr 03 2025 Downloaded on : Thu Apr 03 21:59:11 IST 2025 NEUTRAL CITATION C/SCA/1529/2025 JUDGMENT DATED: 02/04/2025 undefined Estate bearing Waqf ID GJ031348 and Aukaf register Sr. No.031148 registered on 26.03.1963. The land in question is purported to be a Kabristan. The petitioner Trust has made an application to the State Government for designating the subject land as a Waqf property of the Trust. The said application is pending consideration. Further, it is not in dispute that the said land on which the Kabristan is in existence is a Government waste land. The petitioner Trust has started construction on the ground that due to the National Highway, rain water flow in monsoon is damaging the Dargah/Mazar and therefore, it is necessary to renovate the structure. The new structure being constructed is alleged to be encroaching on the margin land of National Highway. It is the case of the petitioner that the said structure is at a distance of some meters from the last lane of the Highway and is separated by a service road and therefore, the same does not come in the margin land which has kept for the safety of the traffic and the public. The petitioner Trust has also relied upon the permission for new construction granted by the Gram Panchayat vide letter dated 03.04.2024 for the said structure. The submission of the learned advocate for the petitioner Trust is that no hindrance or disturbance will be caused to the Highway traffic and public by such construction as Page 12 of 18 Uploaded by KAUSHIK D. CHAUHAN(HC00197) on Thu Apr 03 2025 Downloaded on : Thu Apr 03 21:59:11 IST 2025 NEUTRAL CITATION C/SCA/1529/2025 JUDGMENT DATED: 02/04/2025 undefined it is authorized by the Gram Panchayat. The Taluka Panchayat and District authorities have also recognized the Dargah/Mazar since decades and is also taxed by the Municipal authorities. Further, the permission for Urs is also granted by the District Magistrate and Collector from time to time. The Dargah/Mazar is also having an electric and telephone connections.
7. Though the petitioner has brought all these details on record by way of averments, the fact remains that the land in question is a Government waste land and further that such land has been acquired under the National Highways Act, 1956 for the purpose of construction of National Highway No.27 from Rajkot to Ahmedabad. The land in question is neither under the ownership of the petitioner Trust nor it has been declared as a Waqf property till its acquisition. It is an admitted position that the petitioner Trust has made several representations to various authorities for declaring the said kabristan as Waqf property and to designate the land as a graveyard/kabristan. Further, the contention of the learned advocate for the petitioner Trust that the graves in the graveyard are ancient and therefore also, the usage of the land has been for the graveyard/kabristan and therefore, cannot be considered as a Government waste land is Page 13 of 18 Uploaded by KAUSHIK D. CHAUHAN(HC00197) on Thu Apr 03 2025 Downloaded on : Thu Apr 03 21:59:11 IST 2025 NEUTRAL CITATION C/SCA/1529/2025 JUDGMENT DATED: 02/04/2025 undefined misplaced. The petitioner Trust has been trying to designate the Government waste land as a graveyard/kabristan. The documents produced on record reveals that the Archaeological Survey of India has also not treated the graves and the site being of archaeological importance. The property is not designated as Waqf property also. There is nothing on record to show that the petitioner Trust is the owner of the said land or it is a Waqf property dedicated to the petitioner Trust. Just because the lands may have been used for the purpose of graveyard earlier and that efforts are being made by the petitioner Trust to declare the said land as graveyard will not make the said land graveyard/kabristan as it is a Government waste land. The revenue records are also not disputed by the petitioner Trust which show that it is Government waste land and acquired for National Highway.
8. The contention of the learned advocate for the petitioner that the structure being erected on the grave of Sufi Saint is authorized construction, inasmuch as, the petitioner Trust has taken permission for construction/renovation from the Anandpar (Navagram) Gram Panchayat, is also misconceived. The subject land is a Government waste land and has been Page 14 of 18 Uploaded by KAUSHIK D. CHAUHAN(HC00197) on Thu Apr 03 2025 Downloaded on : Thu Apr 03 21:59:11 IST 2025 NEUTRAL CITATION C/SCA/1529/2025 JUDGMENT DATED: 02/04/2025 undefined acquired by the National Highway Authority by following due procedure of law. The impugned order records that the subject land was in the jurisdiction of Rajkot Urban Development Authority and the Building Bye-laws of the said authority were applicable to the subject land. Nothing has been brought on record by the petitioner Trust to show that the structure erected had been permitted by the said authority or the same was regularized by the authority concerned.
9. The contention of the learned advocate for the petitioner Trust that the land is being used for graveyard/kabristan and further construction of Dargah/Mazar is being discriminated against and being isolated for demolition when there are other illegal and unauthorized temples and other religious structures on or near the Highway also cannot be entertained without such details being brought on record by it. The said contention is based on bare averments not substantiated by any documents on record. Such action of the authority cannot be said to be biased or arbitrary action since the structure in question comes in the margin land of the National Highway. It is also on record that the construction being undertaken by the petitioner Trust is a new construction. Nothing contrary has been brought on Page 15 of 18 Uploaded by KAUSHIK D. CHAUHAN(HC00197) on Thu Apr 03 2025 Downloaded on : Thu Apr 03 21:59:11 IST 2025 NEUTRAL CITATION C/SCA/1529/2025 JUDGMENT DATED: 02/04/2025 undefined record by the petitioner Trust to show that the subject land in question is not allotted to the National Highway Authority or that the construction has not been put up within the "right of way"
and that it is not abutting the National Highway.
10. Further, in the present case, the petitioner Trust has also been accorded proper opportunity of hearing in respect of the construction undertaken by them and they have been given due opportunity to substantiate their claim by producing documents on record. That after hearing the petitioner Trust and their lawyer, the respondent authorities have passed a reasoned order. The petitioner Trust could not prove or demonstrate any rightful ownership, possession and entitlement to usage of the subject land which is Government waste land. The petitioner Trust failed to produce any documents showing their rightful usage in the land after being provided full opportunity of hearing. The judgment relied upon by the learned advocate for the petitioner is not applicable in the facts and circumstances of the present case.
11. With regards to the authority of the respondents to issue such a notice, the said land is allotted to the National Highway Authority and has been duly acquired for the construction of Page 16 of 18 Uploaded by KAUSHIK D. CHAUHAN(HC00197) on Thu Apr 03 2025 Downloaded on : Thu Apr 03 21:59:11 IST 2025 NEUTRAL CITATION C/SCA/1529/2025 JUDGMENT DATED: 02/04/2025 undefined National Highway No.8B, New No.27, Rajkot-Bambanbor Road Section Anandpar (Navagam). The unauthorized construction activity undertaken by the petitioner Trust was intimated by the Collector and District Magistrate, Rajkot by communication dated 03.01.2025. Accordingly, notice dated 09.01.2025 to remove the said construction within the right of way came to be issued under Section 24 of the Control of National Highways (Land and Traffic) Act, 2002 to the petitioner Trust. Any illegal construction inside the right of way can cause traffic hazard on the National Highway and therefore, in the interest of public at large, such constructions which are coming in the right of way on the National Highway are required to be removed.
12. Mere usage of the land in question for a particular purpose when the land in question is not owned by the petitioner Trust cannot be a ground for usage of the land in perpetuity. The petitioner Trust even if it is a registered public trust and having a PAN number and electricity connection, cannot override the public interest and safety in absence of its ownership over the subject land. The petitioner Trust has no legal right in the said land and it is demonstrated by the respondents that the present construction will cause hindrance and interruption in free flow Page 17 of 18 Uploaded by KAUSHIK D. CHAUHAN(HC00197) on Thu Apr 03 2025 Downloaded on : Thu Apr 03 21:59:11 IST 2025 NEUTRAL CITATION C/SCA/1529/2025 JUDGMENT DATED: 02/04/2025 undefined and movement of the traffic. Further, it is the duty of the respondent authorities to ensure that the National Highway is not obstructed or any hindrance may not be created in the smooth flow of the traffic due to illegal constructions.
13. In view of the aforesaid reasons and observations, the impugned order dated 27.01.2025 does not suffer from any infirmity. The impugned order has been passed considering all the contentions raised by the petitioner Trust and after giving appropriate hearing.
In view thereof, the present Special Civil Application is devoid of merits and is accordingly dismissed. No order as to costs.
Sd/-
(ANIRUDDHA P. MAYEE, J.) After pronouncement of the order, the learned counsel for the petitioner prays for continuation of the interim relief for a period of two weeks. The prayer is rejected.
Sd/-
(ANIRUDDHA P. MAYEE, J.) KAUSHIK D. CHAUHAN Page 18 of 18 Uploaded by KAUSHIK D. CHAUHAN(HC00197) on Thu Apr 03 2025 Downloaded on : Thu Apr 03 21:59:11 IST 2025