Uttarakhand High Court

Unknown vs State Of Gujarat on 9 August, 2023

                                             Reserved Judgment

      IN THE HIGH COURT OF UTTARAKHAND
                  AT NAINITAL

         THE HON'BLE THE CHIEF JUSTICE SRI VIPIN SANGHI
                                 AND
              THE HON'BLE SRI JUSTICE RAKESH THAPLIYAL


                    Reserved on : 27.07.2023
                    Delivered on : 09.08.2023

             WRIT PETITION (M/B) NO. 126 OF 2023


Between:

"Gafuria Masjid" Malakhpur
Chungi, Roorkee, District Haridwar
through its Mutawalli Fayyaz Ali              ......         Petitioner

and

State of Uttarakhand & others                ......         Respondents

Counsel for the petitioner : Mr. T.A. Khan, learned Senior Counsel assisted by Mr. Mohd.

Shafy, learned counsel

Counsel for the respondents : Mr. K.N. Joshi, learned Deputy Advocate General with Mr. S.S.

Chaudhary, learned Brief Holder

to 3

The Court made the following:

JUDGMENT: (per Hon'ble The Chief Justice Sri Vipin Sanghi)

The petitioner has preferred the present writ

petition, under Article 226 of the Constitution of India, to

seek quashing of the letter dated 08.06.2023, issued by

respondent No. 5, i.e., the Assistant Engineer, Northern

Division, Ganga Nahar, Roorkee, District Haridwar,

whereby respondent No. 5 gave notice to the manager /

Maulvi / Sewadar of Gafuria Masjid, Malakhpur Chungi,

Roorkee, to remove the religious structure, called

Masjid, constructed on public land, which is causing

obstruction on the public road / public place, and causing

difficulty to the public at large. The petitioner also seeks

a mandamus to the respondent authorities not to

remove the construction known as "Gafuria Masjid",

bearing present Municipal No. 73 (Old Municipal No.

32/2), situated at Malakhpur Chungi, Civil Lines,

Roorkee, District Haridwar.

2) The present petition has been filed by Fayyaz

Ali, who claims to be the Mutawalli of Gafuria Masjid. It

is claimed by the petitioner that the Gafuria Masjid has

been in existence since much prior to independence in

1947. It is claimed that the mosque was constructed by

the local people for the general public, and the land for

the same was given by the then Zamindars. The

petitioner claims that the Municipality has been levying

house tax, which has been paid from, time to time. The

petitioner has placed on record the certified copies of the

house tax assessment lists of Mohalla Civil Line, Nagar

Nigam, Roorkee from 01.04.1957 onwards, to show that

a mosque in question has been recorded in the Municipal

records from 1957 onwards. At this stage itself, we may

observe that the assessment lists placed on record

themselves present a confusing and unclear picture,

inasmuch as, in different lists, the Municipal address of

the masjid differs. The Municipal numbers of the masjid

recorded in the assessment lists placed on record, are

the following:

45    Civil Line   4 N Masjid
41    Civil Line   4 N 3(14) Executive Engineer Canal Deptt.
                   Roorkee Masjid
43    Civil Line   4 O 3(14) Executive Engineer Canal Deptt.
                   Roorkee Masjid
43    Civil Line   4 N 3(14) Masjid

Civil Line Old No. 3(14) Present No. 3(15) Executive Engineer Canal Deptt. Roorkee Masjid 142 Civil Line Old No. 32(15) Present No. 32(13) Ganga Roorkee Masjid Civil Line Old No. 32(32) Present No. 32(32) Mohatmeem Masjid Sri Abdul Gafoor 422 Civil Line Old No. 32(12) Present No. 32(12) Mohatmeem Masjid Sri Abdul Gafoor 563 Civil Line Old No. 32(12) Present No. 32(12) Mohatmeem Masjid Sri Abdul Gafoor 154 Civil Line Old No. 32(12) Present No. 32/2 Mohatmeem Masjid wali Abdul Gafoor 158 Civil Line Old No. 32/2 Present No. 73 Mohatmeem Masjid wali Abdul Gafoor

Pertinently, all the assessment lists show that

the masjid is shown to be existing on land belonging to

the Irrigation Department. Thus, there is no clarity on

the issue. It remains in doubt - as to whether, the

record relied upon by the petitioner, even pertains to the

masjid in question, or not. Pertinently, none of them

record the name of the masjid as Gafuria Masjid.

3) The further case of the petitioner is that the

masjid in question is registered with the Waqf Board.

The petitioner has placed on record notifications with

regard to registered Auqaf. However, on a perusal of

the said entries, we do not find any entry in the name of

Gafuria Masjid.

4) The further case of the petitioner is that the

mosque in question has not been constructed on a

street, or in any public park, or in other public place. It

is, therefore, claimed that the said mosque does not fall

within the ambit of the order passed by the Supreme

Court on 29.09.2009, in Special Leave to Appeal (Civil)

No. 8519 of 2006, Union of India Vs State of Gujarat

and others.

5) The petitioner also claims that the mosque in

question is also recorded in the register of Uttarakhand

Waqf Board, and the name of the Mutawalli recorded is

Fayyaz Ali. A perusal of the said document shows that

the waqf register records the name of the mosque as

"Nahar wali Roorkee", and there is no whisper of

"Gafuria Masjid", by which name the mosque in question

is claimed to be known, by the petitioner.

6) The petitioner claims that that the State of

Uttarakhand has framed a policy known as "The

Uttarakhand Policy for Removal, Relocation and

Regularization of Unauthorized Religious Structures on

Public Streets, Public Parks and other Public Places,

2016". It is claimed that since the mosque in question is

in existence from time prior to independence, and

neither any public road, nor any public park, nor any

public place has been obstructed, thus, the said policy is

not applicable to the structure in question.

7) The petitioner states that the respondents by

issuing the notice in question, has given 24 hours to the

petitioner to remove the said mosque, which is complete

highhandedness on the part of the respondents. It is

claimed that no opportunity of being heard has been

provided to the petitioner, and sufficient time has not

been granted to show cause - as to why, the mosque

should not be removed. In para 16 of the writ petition,

the petitioner claims that the mosque in question is

"Waqf by user", as provided under Section 3(r)(i) of the

Waqf Act. The claim made in para 16 of the writ petition

reads as follows :

"That in fact the aforesaid mosque is a "Waqf by user" as provided u/s 2(r)(I) of the Waqf Act. It is pertinent to mention here that the waqf by user does not need any donation of the land by anybody but if from the time immemorial, the property is being used as a waqf i.e. mosque, graveyard, mazaar etc., the same shall be called as a "waqf by user". The present

mosque is also a "waqf by user" when the land was delivered by the Zamindars/Rulers of pre-independence for the construction of the mosque and it is in existence since then and the same is being continuously attended by the devotees for offering the prayer of Namaz."

8) The petitioner submits that a person, who is in

settled possession, cannot be divested of possession,

except by due process of law. With the aforesaid

averments, the reliefs have been sought, as already

noted hereinabove.

9) When the petition came up for hearing on

16.06.2023, learned Senior Counsel for the petitioner,

after detailed arguments, sought time to file further

documents along with a supplementary affidavit. The

matter was adjourned to 06.07.2023. On the said date

as well, Mr. Khan, learned Senior Counsel for the

petitioner, advanced detailed arguments. Thereafter, he

stated that he needs 10 days time to unearth some

documents of title to show, that the mosque in question

is a waqf property. The matter was again adjourned to

24.07.2023. On 24.07.2023, since the supplementary

affidavit filed by the petitioner was not brought on

record, the matter was adjourned to 27.07.2023. On

27.07.2023, Mr. Khan advanced his arguments.

Thereafter, the judgment was reserved.

10) The petitioner has filed the supplementary

affidavit. In the affidavit, he states that, he tried his

level best to search the documents relating to masjid in

question in the Nagar Nigam, as well as in the office of

the Executive Engineer, Northern Division, Ganga Canal,

but, despite his request, the department of Northern

Division of Ganga Canal has not provided any

information on the subject. Thus, it is clear that the

petitioner has, despite grant of opportunity, not been

able to unearth any document to establish the title of

any person, who could possibly have dedicated the land

in question for the purpose of setting up a mosque. The

documents filed along with the supplementary affidavit

does not, in any way, advance the case of the petitioner,

since all that they show is the existence of the mosque,

but, it is not established that the mosque has been set

up on land which was not Government property, and it

has not been established that the mosque was set up

upon dedication of his property by a person for the

purpose of setting up a mosque. Along with the

supplementary affidavit, the petitioner has also placed

on record a plan of Saharanpur District, prepared in the

year 1973, by the Government of India. The petitioner

claims that the mosque in question is also shown in the

said plan. This plan too, does not establish the title to

the property of any person. At the highest, it shows the

existence of a mosque at the location, at which it is

shown in the plan. We have no means to correlate the

masjid shown in the plan, with the masjid in respect

whereof this petition has been filed.

11) Despite our repeatedly asking Mr. Khan to

show - as to who had made a permanent dedication of

the immovable property, whereon the mosque in

question stands, Mr. Khan has not been able to provide

any answer. There is no record of rights produced by

the petitioner, which would show that the property in

question was ever owned by any person, who could

possibly have made a permanent dedication of the same

for any purpose recognized by Muslim law as pious,

religious or charitable. In fact, the record clearly and

consistently shows, that the land in question - whereon

the mosque is situated, is land belonging to the

Irrigation Department.

12) The averment made by the petitioner in para

16 of the writ petition, which is quoted hereinabove,

may be seen in the aforesaid light. It is claimed that the

mosque in question is a "waqf by user" under Section

3(r)(i) of the Waqf Act, 1995.

13) We may deal with this submission of the

petitioner now. Section 3(r)(i) of the Waqf Act, 1995,

defines "waqf". In so far as it is relevant, the same

reads as follows :

"waqf" means the permanent dedication by any person, of any movable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable and includes -

(i) a waqf by user but such waqf shall not cease to be a waqf by reason only of the user having ceased irrespective of the period of such cesser;"

14) The said section came up for our consideration

in Tafazzul Hussain Ansari Vs State of Uttarakhand and

others, Writ Petition (PIL) No. 82 of 2023, decided on

26.05.2023. In the said judgment, we observed as

follows :

5. At this stage, we may notice some relevant provisions of the Waqf Act, 1955. Section 3(r) of the aforesaid Act defines a "Waqf" to mean the permanent dedication by any person, of any movable or immovable property for any purpose, recognized by the Muslim law, as pious, religious or charitable. Therefore, it appears to us that, for creation of a Waqf, the essential ingredient is that, firstly, there should be a person, who owns movable or immovable property.

6. Secondly, that person should dedicate his own movable or immovable property for any purpose specified by Muslim Law as pious, religious or charitable.

7. The definition is inclusive. It includes a Waqf by user - such Waqf shall not cease to be a Waqf by reason only of the user having ceased, irrespective of the period of such cesser. It also includes a Shamlat Patti, Shamlat Deh, Jumla Malkkan or by any other name entered in a revenue record, and; "grants", including mashrat-ul-khidmat for any purpose recognised by the Muslim law as pious, religious or charitable, and; a waqf-alal-aulad to the extent to which the property is dedicated for any purpose recognized by Muslim law as pious, religious or charitable, provided when the line of succession fails, the income of the Waqf shall be spent for education, development, welfare and such other purposes, as recognized by Muslim law.

8. The inclusions under Clauses (i), (ii), (iii) & (iv) in the definition of "Waqf", to our understanding, cannot take away the primary meaning of the expression "Waqf". A Waqf, by user, cannot be a mere user of a movable, or an immovable property for a pious, religious, or charitable use, recognized by the Muslim law simplicitor. It has to comply with the primary requirement of it being a dedication by a person of his movable or immovable property. Therefore, a Waqf cannot come into existence, when the property, which may be used for a pious, religious, or charitable purpose, as recognized by Muslim Law, is not the property of a person, but is public property, public land, or government land. The expression "a Waqf by user"

only means that the owner of the property, movable or immovable, by his use, exhibits his intention to create a Waqf, i.e. dedication to his property for a purpose recognized by Muslim law as pious, religious or charitable.

9. So far as the inclusion in the definition of the expression "Waqf" of "Shamlat Patti, Shamlat Deh, Jumla Malkkan or by any other name entered in a revenue record", is concerned, there can be no difficulty, since that would be a matter of record.

10. "Grants", mentioned in Section 3(iii), would be grants made by the authority, i.e. the Government or the Sovereign, who is empowered to make the grant, and it would, therefore, exclude any government/ public property from Waqf, even if it is used for a purpose recognized by Muslim law as pious, religious, or charitable, which has not been granted by the empowered authority.

11. "Waqf-alal-aulad", mentioned in Clause (iv) of Section 3(r), also relates to property owned by an individual, and would exclude any property, which is a public property or property of the State.

12. We may now notice the settled principles in this regard. Under the Muslim Law, a waqf can be created in several ways but primarily by permanent dedication of any movable and immovable property by a person professing Islam for any purpose recognized by Muslim Law as pious, religious or charitable purpose and in the absence of such dedication it can be presumed to have come into existence by long use. Dedication of his property by a Muslim is, however, essential.

13. Ordinarily, a waqf is brought into existence by any express dedication of movable or immovable property for religious or charitable purpose as recognized by Muslim Law. Once such dedication is made, the property sought to be dedicated gets divested from the wakif, i.e. the person creating or dedicating it. The waqf so created acquires a permanent nature and cannot be revoked or rescinded subsequently. The property of the waqf is unalienable and cannot be sold or transferred for private purpose.

14. The dedication resulting in the creation of a waqf may, at times, in the absence of an express dedication, may also be reasonably inferred from the facts and circumstances of the case such as long usage of the property as a waqf property, provided it has been put to use for religious or public charitable purposes.

15. The dedication must not be transient, but it must be permanent. The dedication must be for purposes which are regarded as pious, charitable or religious as per Muslim Law.

16. The privy council, in one of its earlier decisions, Jewen Doss Sahoo v. Shah Kubeer-ood-deen, [(1840) 2 MIA 390] explained the significance of the word "dedication" and observed thus :

"According to the two disciples, waqf signifies the appropriation of a particular article in such a manner as subjects it to the rule of divine property, whence the appropriator's right in it is extinguished, and it becomes a property of God, by the advantage of it resulting to his creatures."

17. Justice S.I Jafri in his book "Waqf Laws in India" published in 2015 has explained that a waqf is an unconditional and permanent dedication of property

with implied detention in the ownership of God in such a manner that the property of the owner may be extinguished and its profit may revert to or be applied for the benefit of mankind, except for purposes prohibited by Islam."

15) Thus, the submission of the petitioner that the

mosque in question is a "waqf by user", and that a "waqf

by user" does not need any dedication of the land by

anybody, is completely erroneous, and cannot be

accepted. As we have already observed in Tafazzul

Hussain Ansari (supra), the property - for it to become

a waqf, has to be in the ownership of a person, who

dedicates the same for a purpose recognized by the

Muslim law as pious, religious or charitable. Such

dedication could be expressed in an instrument, or the

intention to make such permanent dedication may be

inferred by user. "Waqf by user" cannot mean,

simplicitor unauthorized or illegal user of a movable or

immovable property, for a purpose recognized by Muslim

law as pious, religious or charitable. We pointedly asked

Mr. Khan - whether a mosque could be said to be validly

set up on encroached land. Mr. Khan candidly states,

that the same cannot be done. His submission,

however, is that the mosque in question has existed for

generations, even prior to independence, and, therefore,

its mere existence should be taken as sufficient to

establish its legitimacy.

16) We cannot accept this submission, for the

reason that the law clearly envisages, and takes into

account, situations where a property may be a waqf

property from the past. Clauses (ii) and (iii) of Section

3(r) of the Waqf Act, 1995 take care of such situations,

as waqf includes a Shamlat Patti, Shamlat Deh, Jumla

Malkkan, or by any other name entered in a revenue

record, and; "grants", including mashrat-ul-khidmat for

any purpose recognized by the Muslim law as pious,

religious and charitable. It also includes a waqf-alal-

aulad under clause (iv) of the said definition. Clauses

(ii) to (iv) of Section 3(r) deal precisely with situations -

where a waqf, such as a mosque, or a burial ground,

may have existed for decades, if not, centuries. Such

waqf, should be duly entered in the revenue record. In

respect of grants made by the sovereign, there would

not only be a document evidencing the grant, but there

would also be a record thereof in the revenue record.

Even though the petitioner claims that the mosque in

question has existed from even before the grant of

independence, there is not a shred of paper produced by

the petitioner, and no revenue record or grant supports

this contention of the petitioner.

17) The copies of the assessment register of the

Municipal Board placed reliance upon by the petitioner,

as aforesaid, are extremely doubtful, and one cannot

correlate those assessment lists with the mosque in

question, for the reasons that the municipal number in

these assessment lists has kept changing from, time to

time, for which there is no explanation. Pertinently,

even in the memo of parties, the petitioner has cleverly

shied away from providing the municipal address of the

mosque in question, and he has provided his own

residential address. Even in the body of the writ

petition, there is no whisper about the municipal address

of the mosque in question. Only in the prayer clause,

the petitioner has mentioned the municipal number

claimed to be that of Gafuria Masjid. These assessment

lists do not name the masjid as "Gafuria Masjid".

18) Pertinently, the assessment lists are prepared

only for taxation purposes, and they themselves clearly

state that they do not confer any right, title or interest

on any person, and cannot be used as an evidence of

title. The payment of electricity bills does not vest the

occupier with any right, title or interest in the property

under occupation. It does not legitimizes the

occupation, as property taxes are fiscal measures

undertaken by the Municipality to generate revenue, and

the Municipality is not concerned with the ownership of

the property, in respect whereof the municipal taxes are

levied. Similarly, electricity bills are only evidence of

charges levied for use of electricity. Not of the legality

of the premises where electricity connection is installed.

19) Reliance placed by the petitioner on the

Gazette of Uttar Pradesh dated 12.02.1993, also appears

to be of no avail, for the reason that at Sl. No. 2147

therein - which is the entry relied upon by the

petitioner, the name of the masjid is recorded as "Masjid

Daftar Nahar Wali", and it is not recorded as "Gafuria

Masjid" - the name by which the petitioner claims that

the masjid is known. Same is the position with regard to

the register maintained by the Uttarakhand Waqf Board.

20) At this stage, we may also observer that mere

entry of a property in the waqf register does not render

the property as a waqf property. Section 37 of the Waqf

Act deals with the register of auqaf. The same reads as

follows :

"37. Register of auqaf - (1) The Board shall maintain a register of auqaf which shall contain in respect of each waqf copies of the waqf deeds, when available and the following particulars, namely :-

           (a)    the class of the waqf;
           (b)    the name of the mutawalli;
           (c)    the rule of succession to the office of

mutawalli under the waqf deed or by custom or by user;

(d) particulars of all waqf properties and all title deeds and documents relating therto;

(e) particulars of the scheme of administration and the scheme of expenditure at the time of registration;

(f) such other particulars as may be provided by regulations.

2. The Board shall forward the details of the properties entered in the register of auqaf to the concerned land record office having jurisdiction of the wafq property.

3. On receipt of the details as mentioned in sub-section (2), the land record office shall, according to established procedure, either make necessary entries in the land record or communicate, within a period of six months from the date of registration of waqf property under section 36, its objections to the Board."

21) Pertinently, it is not even the case of the

petitioner that the masjid in question has been entered

in accordance with Section 37, by giving all the

particulars under clauses (a) to (f) of Section 37(1) of

the Act. The reason for the same is the absence of any

title over the land in question, of any person, who could

possible have dedicated the same for the purpose of

setting up the masjid, either expressly - by way of an

instrument, or by user.

22) In the aforesaid light, we are of the view that

there is lack of clarity of title, and serious doubts arise

about the legitimacy of the petitioner's claim. The next

question which arises for our consideration is - whether,

we are obliged to entertain this petition to grant the

reliefs, as sought by the petitioner.

23) In Mahmood Ali and others Vs The

Government of India and others, Writ Petition (M/B)

No. 180 of 2023, decided on 21.07.2023, we dealt with

a case involving a similar situation. The petitioners

invoked the discretionary jurisdiction of this court under

Article 226 of the Constitution of India to seek protection

against eviction from property wherein, evidently, they

had no right, title or interest to remain, as the property

had been declared an enemy property under the Enemy

Property Act, 1968, and the Custodian of Enemy

Property was intent on taking possession thereof. While,

refusing to exercise our discretionary jurisdiction in

favour of the petitioner, we observed in the said

judgment as follows :

"8. We have considered the submissions or Mr. Nautiyal. As admitted by the petitioners themselves,

and stated by Mr. Nautiyal, the property in question is, admittedly, an enemy property which has vested in the Custodian, and the Custodian has also proceeded to take possession thereof on 05.08.2010 by drawing up the proceedings on the spot. In the face of this admitted factual position, the first and foremost issue that arises for consideration, in our view, is whether we are obliged to entertain the present Writ Petition, in exercise of our discretionary jurisdiction under Article 226 of the Constitution of India, to grant the reliefs, as sought by the petitioners.

9. The jurisdiction vested in this Court, under Article 226 of the Constitution of India, is a discretionary jurisdiction, which the Court would exercise with a view to protect the legitimate rights of the petitioners, against any infraction of those rights by the State, or its instrumentalities. In the present case, the petitioners have no right in the property in question. Admittedly, they are rank trespassers. The jurisdiction that this Court exercises, under Article 226 of the Constitution of India, is an equity jurisdiction. It is to be exercised for the benefit and protection of those petitioners, who come to the Court with clean hands, and seek reliefs, which advance the Rule of law. It is well settled that, in exercise of the writ jurisdiction, the High Court would not pass orders, which protect and promote an illegality. The High Court would not pass orders, which have the effect of perpetuating an illegality. The continued possession of the petitioners, over the property in question, is completely illegal, since the same vests in the Custodian of enemy property, and the petitioners have no right, title or interest thereon. The Court, in exercise of its jurisdiction, under Article 226 of the Constitution of

India, would not lend its hand to grant protection to an illegality. We may notice a few judgments of the Supreme Court on this aspect. In Sangram Singh v. Election Tribunal, (1955) 2 SCR 1, the Supreme Court observed as follows :-

"14. That, however, is not to say that the jurisdiction will be exercised whenever there is an error of law. The High Courts do not, and should not, act as courts of appeal under Article 226. Their powers are purely discretionary and though no limits can be placed upon that discretion it must be exercised along recognised lines and not arbitrarily; and one of the limitations imposed by the Courts on themselves is that they will not exercise jurisdiction in this class of case unless substantial injustice has ensued, or is likely to ensue. They will not allow themselves to be turned into courts of appeal or revision to set right mere errors of law which do not occasion injustice in a broad and general sense, for, though no legislature can impose limitations on these constitutional powers it is a sound exercise of discretion to bear in mind the policy of the legislature to have disputes about these special rights decided as speedily as may be. Therefore, writ petitions should not be lightly entertained in this class of case."

(emphasis supplied)

10. In M.I. Builders (P) Ltd. v. Radhey Shyam Sahu, (1999) 6 SCC 464, the Supreme Court observed in paragraph no. 73 as follows :-

"73. The High Court has directed dismantling of the whole project and for restoration of the park to its original condition. This Court in numerous decisions has held that no consideration should be shown to the builder or any other person where construction is unauthorised. This dicta is now almost bordering the rule of law. Stress was laid by the appellant and the prospective allottees of the shops to exercise judicial discretion in moulding the relief. Such a discretion cannot be exercised which encourages illegality or perpetuates an illegality. Unauthorised construction, if it is illegal and cannot be compounded, has to be demolished. There is no way out. Judicial discretion cannot be guided by expediency. Courts are not free from statutory fetters. Justice is to be rendered in accordance with law. Judges are not entitled to exercise discretion wearing the robes of judicial discretion and pass orders based solely on their personal predilections and peculiar dispositions. Judicial discretion wherever

it is required to be exercised has to be in accordance with law and set legal principles. As will be seen in moulding the relief in the present case and allowing one of the blocks meant for parking to stand we have been guided by the obligatory duties of the Mahapalika to construct and maintain parking lots."

(emphasis supplied)

11. The aforesaid decision was followed by the Supreme Court in Ranu Hazarika v. State of Assam, (2011) 4 SCC 798. The Supreme Court observed in paragraph no. 21 as follows :-

"21. We are of the view that the impugned observation by the High Court would be clearly inimical to the rule of law. While it is trite that courts can exercise judicial discretion in moulding the relief, however, such discretion cannot be exercised to perpetuate and encourage an illegality. [See M.I. Builders (P) Ltd. v. Radhey Shyam Sahu (1999) 6 SCC 464."

(emphasis supplied)

21. ....The impugned orders record that the removal of the encroachment from the property in question is in the public interest, and to ease the traffic congestion in Nainital City. Since claims of a few individuals - such as the petitioners, are pitted against the larger public interest, in exercise of our discretionary jurisdiction, we are inclined to protect, preserve and advance the larger public interest, and that is another reason why we are not inclined to exercise our discretionary jurisdiction in favour of the petitioners.

22. A similar situation arose before us in Writ Petition (M/B) No. 73 of 2023, "Arif Ali and another v. State of Uttarakhand and others", decided on 16.05.2023. The petitioners in that case as well had approached the Court to seek protection against their eviction from public property, over which they had no title. The counsel for the petitioner had placed reliance

on the judgment of the Supreme Court in Krishna Ram Mahale (Dead), By His LRs. vs. Mrs. Shobha Venkat Rao (1989) 4 SCC 131. We dismissed the said Writ Petition, while observing as follows :-

"6. We find it, very often, that those who breach the law blatantly, remind the authorities and this Court of what the law is, to seek to protect their flagrant violation of law.

7. At this stage, it is necessary to give reference to the judgment rendered by the Hon'ble Supreme Court in the case of Joginder and another Vs. State of Haryana and others (2021) 3 SCC 300 wherein the Hon'ble Supreme Court has given a reference to the judgment rendered by it in the case of Jagpal Singh and others Vs. State of Punjab and others (2011) 11 SCC 396. Paragraph 14 of the judgment rendered in the case of Joginder (supra), which is relevant for the purpose, reads as under:

"14. At this stage, the decision of this Court in Jagpal Singh [Jagpal Singh v. State of Punjab, (2011) 11 SCC 396 : (2011) 3 SCC (Civ) 694] is required to be referred to. In the said decision, this Court had come down heavily upon such trespassers who have illegally encroached upon on the Gram Sabha/Gram Panchayat land by using muscle powers/money powers and in collusion with the officials and even with the Gram Panchayat. In the said decision, this Court has observed that "such kind of blatant illegalities must not be condoned". It is further observed that "even if there is a construction the same is required to be removed and the possession of the land must be handed back to the Gram Panchayat". It is further observed that "regularising such illegalities must not be permitted because it is Gram Sabha land which must be kept for the common use of the villagers of the village". Thereafter, this Court has issued the following directions : (SCC pp. 401-402, para 23)

"23. Before parting with this case, we give directions to all the State Governments in the country that they should prepare schemes for eviction of illegal/unauthorised occupants of Gram Sabha/Gram Panchayat/ poramboke/ shamlat land and these must be restored to the Gram Sabha/Gram Panchayat for the common use of villagers of the village. For this purpose the Chief Secretaries

of all State Governments/Union Territories in India are directed to do the needful, taking the help of other senior officers of the Governments. The said scheme should provide for the speedy eviction of such illegal occupant, after giving him a show- cause notice and a brief hearing. Long duration of such illegal occupation or huge expenditure in making constructions thereon or political connections must not be treated as a justification for condoning this illegal act or for regularising the illegal possession. Regularisation should only be permitted in exceptional cases e.g. where lease has been granted under some government notification to landless labourers or members of the Scheduled Castes/Scheduled Tribes, or where there is already a school, dispensary or other public utility on the land."

8. The judgment of the Supreme Court relied upon by the petitioners is of the year 1989, and it emanates from a situation, where a landlord had sought to evict the tenant without following the provisions of law. It was in that context that the Supreme Court had made its observations in Paragraphs 8 & 9, which read as follows:-

"8. Mr. Tarkunde, learned Counsel for defendant No. 3, the appellant herein, rightly did not go into the appreciation of the evidence either by the Trial Court or the High Court or the factual conclusions drawn by them. It was, however, strongly urged by him that the period of licence had expired long back and the plaintiff was not entitled to the renewal of licence. It was submitted by him that in view of the licence having come to an end, the plaintiff had no right to remain in charge of the business or the premises where it was conducted and all that the plaintiff could ask for was damages for unlawful dispossess ion even on the footing of facts as found by the High Court. We find ourselves totally unable to accept the submission of Mr. Tarkunde. It is a well-settled law in this country that where a person is in settled possession of property, even on the assumption that he had no right to remain on the property, he cannot be dispossessed by the owner of the property except by recourse to law. If any authority were needed for that proposition, we could refer to the decision of a Division Bench of this Court in Lallu Yeshwant

Singh v. Rao Jagdish Singh and Ors AIR 1968 SC 620. This Court in that judgment cited with approval the well-known passage from the leading privy Council case of Midnapur Zamindary Company Limited v. Naresh Narayan Roy AIR 1924 PC 144 where it has been observed (p-208):

"In India persons are not permitted to take forcible possession; they must obtain such possession as they are entitled to through a court."

9. The proposition was also accepted by a Division Bench of this Court in Rant Rattan and Ors. v. State of Uttar Pradesh (1977) 1 SCC

188. The Division Bench comprising of three learned Judges held that a true owner has every right to dispossess or throw out a trespasser while he is in the act or process of trespassing but this right is not available to the true owner if the trespasser has been successful in accomplishing his possession to the knowledge of the true owner. In such circumstances, the law requires that the true owner should dispossess the trespasser by taking recourse to the remedies under the law. In the present case, we may point out that there was no question of the plaintiff entering upon the premises as a trespasser at all, as she had entered into the possession of the restaurant business and the premises where it was conducted as a licensee

was not entitled to dispossess the plaintiff unlawfully and behind her back as has been done by him in the present case. It was pointed out by Mr. Tarkunde that some of the observations referred to above were in connection with a suit filed under Section 6 of the Specific Relief Act, 1963 or analogous provisions in the earlier Specific Relief Act, 1877. To our mind, this makes no difference in this case as the suit has been filed only a few weeks of the plaintiff being unlawfully deprived of possession of the said business and the premises and much before the period of six months expired. In view of the aforesaid conclusions arrived at by us, we do not propose to consider the question whether the agreement

amounted to a licence or a sub-lease."

9. These observations certainly cannot come to aid of a person who is a rank trespasser of a public property. Neither the petitioners are having any title at present, nor they ever had one over the land in question.

10. In the light of the aforesaid, we are of the view that the reliance placed on the provisions of the Uttarakhand Zamindari Abolition and Land Reforms Act, 1950 and the U.P. Public Premises (Eviction of Unauthorised Occupants) Act, 1972 is of no avail to the petitioners. The respondents are acting in terms of the orders passed by this Court; after getting a local inspection conducted through C.O. and; after having also issued a notice to the petitioners, who have responded to the same by falsely claiming that the land in question falling in Khasra No. 179 in Village Ratna Madaiyya, Kelakhera, Tehsil Bazpur, District Udham Singh Nagar had been allotted to them under the Nasbandi Yoajana (Family Planning Programme). The insistence by the petitioners on the respondents adopting the procedures of the aforesaid Acts is only to take advantage of the delays that they would entail. They are only seeking to prolong and perpetuate their illegality. It is not that they have any legally sustainable defence as none has been shown to us, even prima facie."

23. A similar claim was made by the petitioners in Writ Petition (M/B) No. 74 of 2023, "Anchal Kumar Paswan & others v. Union of India & others", decided on 17.05.2023. In that case as well, the petitioners were rank trespassers on public property. They approached the Court seeking protection against their eviction. This Court dismissed the said petition, while observing as follows :-

"4) The petitioners are seeking a discretionary relief from this Court. It is well settled that any person, who approaches this Court seeking a discretionary relief, should come with clean hands. The petitioners, pertinently, have no title to the land which they have occupied, and are illegally occupying the government property. This Court will not lend its hands, and come to protection of such persons, who are encroaching and illegally occupying the government property. We cannot pass orders to protect or advance an illegality. The petitioners are rank trespassers over government land. Pertinently, they have not even claimed any rights in the land by adverse possession. That could have been their best case. Even in respect of such a claim, the Supreme Court has observed in HemajiWaghaji Jat Vs Bhikhabhai Khengarbhai Harijan, (2009) 16 SCC 517, as follows:

"32. ...The law ought not to benefit a person who in a clandestine manner takes possession of the property of the owner in contravention of law. This in substance would mean that the law gives

seal of approval to the illegal action or activities of a rank trespasser or who had wrongfully taken possession of the property of the true owner.

33. We fail to comprehend why the law should place a premium on dishonesty by legitimising possession of a rank trespasser and compelling the owner to lose his possession only because of his inaction in taking back the possession within limitation..."

24) In our view the principle laid down by us in the

aforesaid decisions is squarely attracted in the facts of

the present case. The mosque in question stands on

public land. As per the notice issued by respondent No.

5, it is obstructing public road / public place, due to

which the general public is facing difficulty in movement.

Though it is claimed by the petitioner, that the impugned

notice gave the petitioner only 24 hours to remove the

mosque, the fact of the matter is that the said notice

was not acted upon by the respondent authorities, and

they did not remove the masjid within 24 hours of the

issuance of the notice dated 08.06.2023. The present

petition was filed before the Court on or about

14.06.2023. It was listed before the Court on

16.06.2023, and remained pending till 27.07.2023,

when the judgment was reserved. During all this period,

there was no interim order granted by us in favour of the

petitioner to protect it against demolition of the mosque

by the respondent authorities. The respondent

authorities have not yet demolished the mosque. The

petitioner has had full opportunity to place its case

before us, and to argue the same, and we have also

granted full hearing to the petitioner. Therefore, there is

no merit in the petitioner's grievance that the petitioner

has not been given an adequate opportunity by the

respondents, while issuing the impugned notice. The

petitioner has had full opportunity to argue its case

before the High Court, and the petitioner could not have

asked for more.

25. Mr. Khan has also placed reliance on several

decisions in support of his arguments. Firstly, he placed

reliance on the judgment of the Supreme Court in Sukh

Dutt Ratra and another Vs The State of Himachal

Pradesh and others, in Civil Appeal No. Nil of 2022,

arising out of Special Leave Petition (C) Diary No.

13202 of 2020, decided on 06.04.2022. This was a case

where the land of the land owner was consumed in

construction of Narag Fagia road without acquiring the

same under the provisions of the Land Acquisition Act.

The land owner filed the writ petition before the High

Court seeking compensation for his land or initiation of

acquisition proceedings under the Land Acquisition Act.

The writ petition was dismissed on the ground that it

involved disputed questions of law and fact for

determination on the starting point of limitation, which

could not be adjudicated in writ proceedings. The

Supreme Court allowed the appeal of the land owner.

We fail to appreciate the purpose for which this

judgment has been cited by the petitioner. Admittedly,

the petitioner is not having any title to the property in

question. Admittedly, the land in question over which the

mosque is constructed is public land. This judgment,

therefore, has no application in the facts of the case.

26) Reliance placed by Mr. Khan on the policy

framed by the State Government in the year 2016, is

also of no avail. The said policy does not state that

illegal construction raised on encroached public property,

before the judgment of the Supreme Court in Union of

India Vs State of Gujarat and others, dated

29.09.2009, will not be demolished. In fact, even the

said judgment itself does not state that illegal and

unauthorized construction already raised on Government

land would stand regularized. It was left to the State

Governments, and the Union Territories, to review the

same on case to case basis, and take appropriate steps,

as expeditiously as possible.

27) Mr. Khan has next placed reliance on the

judgment of the Allahabad High Court in Sayed Ali

Jaseer and others Vs Shafi and others, 1981 Allahabad

Law Journal 669. This judgment is also of no avail to

the petitioner, for the reason that the principle it lays

down is that -

"...the burial of the saint at that place would impute to the owner of the land an intention of dedication and delivery of possession."

(emphasis supplied)

Thus, this was not a case where a waqf was

claimed in respect of a property which was public land,

which had been encroached upon.

28) Mr. Khan has next placed reliance on the

judgment of the Madras High Court in N.R. Abdul Azeez

and four others Vs E. Sundaresa Chettiar and another,

1992-2-L.W.-296. The relevant portion of para 15 of

the said judgment reads as follows :

"....Once the mosque was constructed it stood dedicated to God and all the right, title and interest of the owner got completely extinguished. Once there was a complete dedication to the mosque as a place of public worship any reservation imposed by the owner would be deemed to be void. Under the Muslim law once the dedication was complete, the property passed from the owner to god and it never returns to the owner and therefore the question of the mosque being private can never arise." (emphasis supplied)

29) Once again, we find that the Madras High

Court was dealing with a case, where private property

had been dedicated by the owner for the purpose of

construction of a mosque as a place of public worship.

Thus, this case has no relevance in the present context.

30) Mr. Khan has also placed reliance on Salem

Muslim Burial Ground Protection Committee Vs State

of Tamil Nadu and others, Civil Appeal No. 7467-7470

of 2014, decided on 18.05.2023. It was claimed by the

appellant that the suit land, at one point of time, was

used as a burial ground, but the municipality ordered its

closure for health reasons somewhere in the year 1867,

and an alternative site was allotted for use as a burial

ground. This submission of the appellant was, in fact,

rejected by the Supreme Court, and the Supreme Court

rejected the claim of the appellant - that the suit land

was waqf property. The Supreme Court observed in

paras 28 and 29 of this judgment, as follows :

"28. In the case at hand, there is no iota of evidence from the very inception as to any express dedication of the suit land for any pious, religious or charitable purpose by anyone professing Islam. Therefore, on the admitted facts, the wakf by dedication of the suit land is ruled out.

29. The only issue, therefore, is whether the suit land would constitute a wakf by user as it was used as a burial ground which practice has been stopped at least for the last over 60 years since the year 1900 of 1867. There is

even no concrete evidence on record to prove that the suit land prior to the year 1900 of 1867 was actually being used as a burial ground (kabristan). Therefore, the alleged use of the suit land as burial ground prior to 1900 to 1867 is not sufficient to establish a wakf by user in the absence of evidence to show that it was so used. Thus, it cannot constitute a wakf by user also. The alleged recording of the suit land as a kabristan or as a burial ground is a misnomer or a misconstruction inasmuch as the suit land, if at all, came to be recorded as a rudrabhoomi which denotes Hindu cremation ground and not a burial ground or a kabristan.

It was only Zamin Survey No. 5105 or O.T.S. No. 2253 (new T.S. No. 1) with two tombs existing which alone was recorded as a burial ground. The said land is specifically demarcated and separated from the suit land. The said burial land had already been handed over to the Wakf Board and its recording as such would not impact upon the nature of the suit land so as to constitute it to be a burial ground or a kabristan. Therefore, the suit land was not proved to be a wakf land by long usage also. There is no evidence to prove creation of a wakf of the suit land either by dedication or by usage."

This judgment, in fact, supports our view that

there is nothing to establish that the mosque in question is

a waqf, as there is nothing to establish the dedication by

any person of his land for the purpose of setting up a

mosque.

31) Lastly, Mr. Khan has placed reliance on the

judgment of the Privy Council, in Ballabh Das and

another Vs Nur Mohammad and another, A.I.R. 1936

Privy Council 83. Even this decision is of absolutely no

avail to the petitioner. This too was a case where the

plaintiff was the owner of the land. The issue was -

whether the land in question was dedicated to create a

waqf as a graveyard. In the facts of the present case, this

case has no relevance whatsoever.

32. For the aforesaid reasons, we do not find any

merit in this petition. We are not inclined to exercise our

extraordinary discretionary writ jurisdiction in favour of the