Gujarat High Court
Katariya Usmangani Hajibhai Trustee Of ... vs State Of Gujarat on 2 April, 2025
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C/SCA/1529/2025 JUDGMENT DATED: 02/04/2025
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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/-
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Approved for Reporting Yes No
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KATARIYA USMANGANI HAJIBHAI TRUSTEE OF HAZRAT JALALSHAH
PIR DARGAH TRUST
Versus
STATE OF GUJARAT & ORS.
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
