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Gujarat High Court
Fakir Aashif Hashambhai vs State Of Gujarat on 2 December, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16082 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE MAUNA M. BHATT sd/-
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Approved for Reporting Yes No
Yes
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FAKIR AASHIF HASHAMBHAI
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR MTM SAIYED, LD.ADVOCATE WITH MR SAQUIB S ANSARI(7152) for
the Petitioner(s) No. 1
MR G.H.VIRK, LD.GOVERNMENT PLEADER WITH MR SAHIL TRIVEDI,
LD.AGP for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 02/12/2025
ORAL JUDGMENT
1. Rule returnable forthwith. Learned Government Pleader
Mr.G.H.Virk waives service of Rule on behalf of the
respondents. Further Affidavit filed by the petitioner dated
26.11.2025 is taken on record.
2. This petition is directed against the Notice dated
18.11.2025 (Annexure "A" Page-20) of respondent No.2 -
Executive Engineer, Roads & Building Division, Morbi, whereby
the petitioner was directed to remove encroachment created on
a Government Land.
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3. Heard learned advocate Mr.MTM Hakim for the petitioner
and learned Government Pleader Mr.G.H.Virk for the
respondents.
4. Learned advocate Mr.MTM Hakim for the petitioner
submitted that Notice dated 18.11.2025 is illegal, arbitrary,
unconstitutional and contrary to the statutory provisions of
Law and Rules framed there under, and also in gross violation
of the directive issued by Hon'ble Supreme Court in the matter
of Re: Demolition of Structures, reported in 2024 SCC Online
SC 3291. The notice also violates the directions of Hon'ble
Supreme Court in the case of Manoj Tibrewal Akash reported
in 2024 SCC OnLine SC 3210.
4.1 Referring to the facts, learned advocate for the petitioner
submitted that the petitioner herein is legal heir of Hashamsha
Zafarsha Fakir and was directed to immediately remove the
alleged illegal construction known as ' Mota Peer Dargah'. It is
case of the petitioner that on the land of Ward No.2, City
Survey No.1, Sheet No.128, Morbi City, there exists 'Wagh
Mahal' also known as 'Mani Mandir' constructed between 1934
and 1935 by the ruler of Morbi, Sir Waghji Thakor. At the time
of construction of 'Wagh Mahal'/ 'Mani Mandir' and even
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prior to that, there existed 'Mota Peer Dargah'. The said
'Mota Peer Dargah' (hereinafter referred to as "Dargah in
question") is believed to be around 300 years old and situated
within the compound of 'Wagh Mahal'/ 'Mani Mandir'. The
Dargah is adjacent to 'Mani Mandir.' To justify the presence of
Dargah next to 'Mani Mandir', learned advocate has placed
reliance on photographs annexed at Page-22 to 28.
4.2 Learned advocate for the petitioner submitted that the
petitioner herein is care-taker and Mujawar of the Dargah in
question and prior to him, father of the petitioner was the
care-taker and Mujawar. The payment of Municipal Tax Bills
and Electricity bills to Morbi Nagarpalika has been done till
date by the Mujawar. The bills are annexed at Annexure "C"
(Page-29 onwards).
4.3 Learned Advocate submitted that during earthquake in
the year 2001, structure of 'Mani Mandir' was damaged and
thereafter remained closed. In the year 2008, the State
Government gave 'Mani Mandir' on lease to Queen Vijay
Kuvarba for 20 years for the museum and to be renovated to
its original state. When the Map was prepared by respondent
No.2, at the time of lease, the area of Dargah was earmarked
(Annexure-D Page -51). This 'Mota Peer Dargah' is a place of
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worship for both Hindus and Muslims, wherein a Saint - Mota
Peer was buried before 350 years ago. Other Sufis were also
buried nearby the tomb of Mota Peer and there this place has
its own significance carrying religious sentiments.
4.4 Learned advocate for the petitioner submitted that
however, on account of complaints made by some antisocial
people questioning existence of 'Mota Peer Dargah' an inquiry/
investigation was initiated resulted into filing of FIR dated
24.09.2022 under section 4(1), 4(3) and 5(C) of Gujarat Land
Grabbing (Prohibition) Act with Morbi City Division Police
Station, Morbi. At the relevant time, father of the petitioner
being Mujawar, an FIR was filed against him and it became
subject matter of Special Criminal Application No.11268 of
2022. Special Criminal Application No.11268 of 2022 was in
relation to Land Grabbing, where virues of the provision was
also under challenge. However, due to death of father of the
petitioner on 23.12.2024, the proceedings initiated under the
provisions of Land Grabbing Act stood abetted and accordingly
Special Criminal Application No.11268 of 2022 was dismissed.
Respondent No.2, therefore, in charge sheet proceedings before
Special Court, sought possession of the subject land wherein,
the Special Court abetted the proceeding and refused to hand
over the possession. Learned advocate submitted that the said
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order was passed on 11.11.2025 (Annexure "I", Page 68 to
71). Immediately thereafter, Notice dated 18.11.2025 was issued
to legal heir of Mujawar i.e. petitioner herein.
4.5 Learned advocate submitted that Notice issued dated
18.11.2025 is bad in law on the following grounds:
(i) Existence of Dargah since many years, is not in dispute.
The Electricity Bills and Municipal Tax Bills of Morbi
Nagarpalika evidences the same. Morbi Nagarpalika has
assessed the property, for the purposes of payment of Taxes
since 1983 (Annexure "C" Page-29 and Page 43). Therefore,
this religious structure being old, and prior to year 2009, the
decision of Hon'ble Supreme Court in Special Leave to Appeal
(Civil) No.8519 of 2006 would be applicable, wherein the
Hon'ble Supreme Court has directed that 'in respect of the
unauthorized construction of religious nature which had
already taken place, the State Government and the Union
Territories shall review the same on case-to-case basis and take
appropriate steps as expeditiously as possible'. Pursuant to
which the Government has passed Resolution dated 22.01.2010,
wherein, the survey of religious structure in existence prior to
2009, in public places is to be carried out by Nodal Officer
and to submit a report. The committees are formulated as
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District Level Committee and Taluka Level Committee and the
issue of removal of encroachment of religious nature or
relocation of the same is to be decided by that Committee.
Therefore, this matter may also be referred to such committee
for its decision for removal or relocation. In this case, since
straight notice has been issued without survey and therefore
the notice being bad in law deserves to be quashed and set-
aside.
(ii) Learned Advocate for the petitioner submitted that the
land where Dargah is situated is a Government Land. The
construction done was also without prior permission hence
unauthorized. However, since the Dargah in question is
situated in public place, the decision of Hon'ble Supreme Court
and the Government Resolution dated 22.10.2010, would be
squarely applicable.
(iii) Further, as stated in the Additional Affidavit, earlier
attempt was made to register Dargah as Waqf Property.
However, subsequently the application seeking registration in
PTR was withdrawn and therefore, this is not a property
managed by Waqf Board.
(iv) Referring to interim guidelines in respect of the
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Unauthorized construction of religious structure on public
streets, public parks or other public places dated 19.04.2024,
Learned advocate submitted that it would apply to the
structure in the cases where G.R was not applied fully. In this
case, since earlier G.R. is not applied fully, let the decision be
taken by committee in relation to its removal or relocation.
Therefore, this petition deserves consideration by directing the
respondent authority to carry out survey as referred in the
Government Resolution dated 22.10.2010 and subsequent
Guidelines dated 19.04.2024.
4.6 In support of his submissions, Learned Advocate Mr.
MTM Hakim has relied upon following decisions:
(i) Prakash Chemicals Private Limited V/s. Krishnasingh
Satasingh Kaaniyara reported in 1992(0) AIJEL-GJ 209547 to
submit that access by public for various purposes qualifies as
'public place' under Section 2(24) of Motor Vehicles Act, 1988
regardless of ownership or permission requirements.
(ii) United India Insurance Company Limited V/s. Gujarat
Ship Trading Corporation & Ors. reported in 1997(0) AIJEL-HC
213342, to submit that public place as defined under section
2(34) of Motor Vehicles Act, 1988 refers to place which
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includes any place which members of public use and to which
they have a right of access and therefore, the unauthorized
construction of Dargah is a public place.
(iii) Gulam Abbas and others V/s. State of U.P. and others
reported in (1984)1 SCC 81, to submit that Dargah can be
relocated and therefore, let committee consider the case of the
petitioner for relocation of Dargah as provided in Government
Resolution dated 22.01.2010 and Guidelines dated 19.04.2024.
(iv) Lastly, learned advocate relied upon decision of this
Court in the case of Hajrat Jok Alisha Dargah through its
trustee Solanki Arifbhai Mahmadbhai Versus Dr.Om Prakash,
Municipal Commissioner reported in 2025(0) AIJEL-HC 251521
to submit that this Court in an alleged contempt proceedings
has issued Notice where the directions of Hon'ble Supreme
Court, are not followed. Therefore, directions may be issued to
appoint Nodal Officer to inquire into structure and thereafter
to place the report before Committee for consideration of
relocation of Dargah in question, as required under G.R. dated
22.01.2010.
5. Opposing the petition, learned Government Pleader Mr.
G.H.Virk for the respondents placed on record the compilation.
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Referring to the property card forming part of compilation, it
was submitted that the land of City Survey No.1 of Morbi
admeasuring 38080.76 square meters is a Government Land
where Mani Mandir is situated. Further, if the property tax
bills on which reliance is placed at Page-43, 45 and 47 are
perused, they are of year 1981 and onwards, therefore, the
assertion that Dargah is 300 years old is not supported by any
documents. Further, if the Map annexed with assessment of
property is perused, there existed no Dargah; therefore, prior
to 1981, no Dargah was present on Government Land and it is
nothing but encroachment by the petitioner. The initiation of
proceedings under Land Grabbing Act supports the case of
Respondent. Reference of the communications dated 05.04.2022
and 14.10.2022 (page 9 and 10 of compilation) was made to
submit that even on perusal of record it was found that earlier
Dargah was not in existence.
5.1 Learned Government Pleader submitted be that as it may,
it is an unauthorized construction of Dargah on a Government
Land. Therefore, earlier Notice dated 18.01.2022 (Page-5 of
compilation) was issued to the petitioner to remove
unauthorized construction followed by another Notice dated
07.02.2022. Opportunity was granted to provide documents
which the petitioner failed. Thus, admittedly 'Mota Peer
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Dargah' was constructed unauthorized on Government Land.
Further, this is not property registered in PTR and managed by
Waqf. It is the property managed by individual and therefore,
contention that it is attached to Muslim community, is not
correct. Earlier Notices were served to the petitioner; however,
no reply was filed.
5.2 The decision of the Hon'ble Supreme Court relied upon
by the petitioner would not be applicable in the facts of this
case because it refers to public streets, public parks and other
public places, whereas the Dargah in question is neither on
public street, public parks nor on other public places. The
'Mani Mandir' is not a public place, because earlier it was a
state property and now given on lease to queen. From the
photographs annexed it is evident that it is situated next to
'Mani Mandir'.
5.3 For removal of unauthorized construction Learned
Government Pleader Mr.G.H.Virk relied upon following
decisions:
(i) In the case of Navdurga Charitable Trust V/s. State of
Gujarat reported in 2017 SCC Online Guj 1303;
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(ii) Decision in the case of Mancha Masjid through Trustee/
Mutawalli Amjadkhan Aslamkhan Pathan V/s. State of Gujarat
and others in Letters Patent Appeal No.1130 of 2025.
In view of the above submissions, this petition deserves
rejection.
6. Considered the submissions and documents on record.
From the submissions and documents on record, it is noticed
that grievance of the petitioner is against Notice dated
18.11.2025, whereby, he has been directed to remove
unauthorized construction on the Government land. It is not in
dispute that Dargah in question is unauthorized constructed on
the Government land. It appears that basis unauthorized
construction on Government Land, proceedings under the Land
Grabbing Act were initiated. Upon filing of FIR, investigation
was done and communications dated 05.04.2022 and
14.10.2022, were addressed from city survey superintendent. In
both the communications, on the basis of 1987 city survey
office record, the existence of Dargah is questioned. Be that as
it may, however, unauthorized construction on the Government
Land is not in dispute. For unauthorized construction on the
Government Land, the Hon'ble Supreme Court in the case of
Kaniz Ahmed v.s. Sabuddin and Ors. reported in 2025 SCC
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Online SC 995, held as under:-
"6. The learned counsel appearing for the petitioner
would submit that her client be given one chance to
pray for regularization of the unauthorized
construction. We do not find any merit in such
submission. A person who has no regards for the
law cannot be permitted to pray for regularization
after putting up unauthorized construction of two
floors. This has something to do with the rule of
law. Unauthorized construction has to be
demolished. There is no way out. Judicial discretion
would be guided by expediency. Courts are not free
from statutory fetters. Justice is to be rendered in
accordance with law. We are at pains to observe
that the aforesaid aspect has not been kept in mind
by many State Governments while enacting
Regularization of Unauthorized Development Act
based on payment of impact fees.
7. Thus, the Courts must adopt a strict approach
while dealing with cases of illegal construction and
should not readily engage themselves in judicial
regularization of buildings erected without requisite
permissions of the competent authority. The need
for maintaining such a firm stance emanates not
only from inviolable duty cast upon the Courts to
uphold the rule of law, rather such judicial restraint
gains more force in order to facilitate the well-being
of all concerned. The law ought not to come to
rescue of those who flout its rigours as allowing the
same might result in flourishing the culture of
impunity. Put otherwise, if the law were to protect
the ones who endeavour to disregard it, the same
would lead to undermine the deterrent effect of
laws, which is the cornerstone of a just and orderly
society. [See: Ashok Malhotra v. Municipal
Corporation of Delhi, W.P. (c) No. 10233 of 2024
(Delhi High Court)]"
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7. In view of above, unauthorized construction on the
Government land cannot be permitted, for which earlier two
notices dated 18.01.2022 and 07.02.2022, were served to father
of the petitioner. Thus, there is no illegality in issuing the
Notice dated 18.11.2025, for removal of unauthorized
construction.
8. Now, the issue for consideration remains is that of
''whether the place where 'Mota Peer Dargah' is situated can
be considered as 'public place' so as to make the Government
Resolutions dated 22.01.2010 and 19.04.2024 applicable?'' It
was contended on behalf of the petitioner that Dargah is
situated in the campus of 'Wagh Mahal'/ 'Mani Mandir',
earlier having Government offices. Hence, since the Dargah in
question is situated in a public place, the Two Government
Resolutions Dated 22.01.2010 and 19.04.2024, would be
applicable, and this religious structure deserves to be surveyed
by the concern Nodal officer appointed under the Government
Resolutions for preparation of report to be placed before
Committee for removal or relocation this religious structure.
9. Section 2(50) of the GPMC Act defines 'public place',
which reads as under:
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"Public Place" includes any public park or garden or any
ground to which the public have or are permitted to
have access.
In this case, the petitioner is seeking declaration from
this Court that 'Mota Peer Dargah' is situated on ground to
which public have or are permitted to have access, but failed
to establish public's enforceable right to enter and use the
premises. In other words, if the contention of the petitioner is
accepted, he is seeking Government land of Mani Mandir to be
declared as 'public place'. The Supreme Court vide order dated
31.01.2018, in Special to Leave to Appeal No.8519 of 2006 has
directed the State Government and Union Territories to identify
unauthorized construction of religious nature on public streets,
public park and public places within six weeks from
31.01.2018. Therefore, when the state has not identified the
unauthorized construction of Dargah in question as the
unauthorized religious structure on public place, the question
of such declaration would not arise. Moreover, in the petition
filed, the petitioner has not prayed for such relief.
10. Further, if the documents annexed are perused then at
pages 41,43,44, of the petition there are few bills by Morbi
Nagarpalika, and the address of Dargah was referred as Wagh
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Mahal Road. Thereafter, under lease agreement dated
20.12.2008, the property of 'Mani Mandir' admeasuring
10784.00 square meters having city survey no. 128 and
Revenue Survey No. 15 and open land of Willington
Secretariat, admeasuring 21961 sq. mtrs known as "Mani
Mandir" was given to Queen Vijay Kuvarba for 20 years for
development of Museum. As per the lease agreement, the
ownership of the land and property remained with the
Government. The revenue record shows the land and 'Mani
Mandir' in the ownership of the Government. Therefore, if the
contention canvassed on behalf of the petitioner is accepted,
then in my opinion, it would amount to declaration of
Government land and property as Public Place. Moreover, land
and the property of 'Mani Mandir' being leased to Queen Vijay
Kuvarba for 20 years for development of Museum, the
possession is not with the State. Earlier to this, it was never
case of the petitioner, that the Dargah is in Public Place, and
no replies were filed to the notices.
11. Moreover, in the opinion of this Court direction of the
Hon'ble Supreme Court to "review the unauthorized
construction on case-to-case basis" presupposes the existence of
verifiable facts warranting individualized consideration. In this
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case, no evidence supports the claim of historical religious
significance, and therefore also, at this stage direction to Nodal
Officer to carry out survey is not necessary.
12. Therefore, in the opinion of this Court, the Notice dated
18.11.2025, issued by Respondent No.2, cannot be stated to be
illegal since the unauthorized construction of Dargah in
question cannot be declared as situated in a public place, in a
Writ petition filed under Article 226 of the Constitution of
India.
13. The two decisions relied upon by the petitioner are under
the provisions of Motor Vehicles Act, where public place is
defined. In both the decisions, this Court has held that wider
expression is required so as to cover definition of 'Public
Place' under the provisions of the Motor Vehicles Act; and
therefore, the decisions are not applicable in the facts of this
case.
14. With this, the present petition is disposed of. Rule is
discharged.
sd/-
(MAUNA M. BHATT,J)
DIPTI PATEL...
