The Supreme Court has held that in the absence of any proof of dedication or user, a dilapidated wall or a platform cannot be conferred a status of a religious place for the purpose of offering prayers / Namaaz in terms of Section 3(r) of the Waqf Act, 1995.
The Division Bench of Justice Hemant Gupta and Justice V. Ramasubramanian in view of this dismissed an appeal assailing the order of the Rajasthan High Court by which Jindal Saw Ltd. was allowed to remove a structure from the plot allotted to it for mining denying claims of Rajasthan Waqf Board of it being a religious place.
Brief Facts of the Case
The Survey Commissioner, Waqf of the State of Rajasthan, conducted survey of the waqf properties in the year 1963. In the said survey, a structure was found named as ‘Tiranga Ki Qalandari Masjid’ in the survey report. On the basis of said Survey report, a notification was published in 1965 in which ‘Qalandari Masjid of Tiranga’ located at village Pur was notified as wakf. Later, on the basis of the said Gazette Notification, the ‘Tiranga Ki Qalandari Masjid’ was entered in the waqf register as admeasuring 12x9=108. Another survey was conducted in village Pur, Bhilwara in accordance with the Waqf Act, 19952 . The ‘Qalandari Masjid Tiranga’ was found in existence in Survey Number 931 as per the report dated 15.1.2002. Part III (b) of the said survey report gives dimension of the mosque as 25x25x25x25, bounded on all sides by Hills.
However, Survey No. 931 was not included in the list of survey numbers of which lease was granted. There was no reference to Survey No. 931 as to whether lease is to be granted or not to be granted for the same.
The Anjuman Committee addressed a letter dated 18.4.2012 to the Chairman of the appellant-Board to the effect that on Tiranga Hill in Village Pur, there is a wall and Chabutrah (platform) on so-called Qalandari Masjid where in olden times laborers used to offer prayers. The elders had informed that they have not seen anybody praying Namaaz nor there is access to water and stairs to reach the platform. The office of the appellant responded that the area consisting of the platform over the Tiranga Hill should be saved from mining.
Later, the Chairman of the appellant-Board communicated to the Collector and to the Superintendent of Police that the communication dated 18.4.2012 is being misinterpreted as the purpose was to safeguard the interest of the waqf but the members of the Anjuman Committee have acted for personal gain and, therefore, action should be taken. In response to the said letter, the District Magistrate communicated that an FIR has been registered and a sum of Rs.65 lakhs has been recovered.
In this background, respondent No. 1 herein filed a writ petition before the High Court wherein the impugned order was passed.
Learned counsel for the appellant argued that such Expert Committee constituted had no representative of the appellant and the appellant was not associated with the report so submitted, therefore, the report cannot be made basis of rejecting the structure on the Hill as not a religious structure. It was contended that whether the structure is a waqf or not has to be decided by the Waqf Tribunal in terms of Section 83 of the Act and not in a writ petition under Article 226 of the Constitution of India.
Senior Counsel for the State Government has submitted that it is determined that mining lease is not permissible over Survey No. 6731.
Senior Counsels for the respondent has submitted that permission to do the mining work but there is no document or report to show that any part of Survey No. 6731 was ever declared to be a religious structure within the meaning of waqf as defined under the Act. They furnished the photocopies of the original documents on the basis of which reliance was placed by the appellant that the Tiranga Qalandari Masjid in Village Pur is a mosque and, therefore, no mining activity can be undertaken.
Supreme Court's Analysis
The Court noted that the as per report of the Committee which contained designated members, it was found that the dilapidated structure existing at Khasra No. 6731 is neither a mosque nor any structure with archaeological or historical relevance.
Shri A.K. Nandwana, one of the members though had partially dissented with the report voicing that steps should be taken to stop the illegal mining.
The Court noted that the record of the appellant shows that the area of the religious structure is 108 feet whereas in the second survey report, the area is shown to be 525 feet. Hence, there is a discrepancy about the area over which the religious structure is in existence.
It took into note, the photographs produced claiming that the place was covered in greenry and no structure was allegedly there and experts from the Archaeological Department report stating that the structure has no historical or archaeological importance.
Further noting that Tehsildar, before the possession was delivered, had given an extensive report of each of the structure existing on the land proposed to be given and the lands for graveyard and other religious structures have been excluded from the lease, the Court ruled that the act of identification carried out years before raising of the dispute done by the revenue officials in the course of their official duties carry presumption of correctness. It shows that the structure had no religious value.
"There is no assertion that the Survey No. 931 is changed as Survey No. 6731. In fact, the old number of Survey No. 6731 is 9646 or may be some other number but positively not the survey number 931. Therefore, the claim of the appellant is on a different portion of land and not the land leased to the writ petitioner. There is discrepancy in the total area of the Masjid in the two documents, i.e., the extract produced by the appellant from the register and the second survey report. The letter dated 17.4.2012 by the Anjuman Committee is based upon hearsay and is not of any binding value."
The Court also stated that there is no evidence at any given point of time that the structure was being used as a mosque.
"'There is no allegation or proof of either of dedication or user or grant which can be termed as a waqf within the meaning of the Act."
Concluding that in the absence of any proof of dedication or user, a dilapidated wall or a platform cannot be conferred a status of a religious place for the purpose of offering prayers/Namaaz, the Court remarked that the State is at liberty as lessor to exercise the powers conferred in it by the lease deed after complying the principles of natural justice and on good and sufficient grounds.
Case Title: WAQF BOARD, RAJASTHAN Versus JINDAL SAW LIMITED & ORS.
Case Details: CIVIL APPEAL NO. 2788 & 2789 OF 2022 (ARISING OUT OF SLP (CIVIL) NO. 16196 & 17334 OF 2021)
Coram: Justice Hemant Gupta and Justice V. Ramasubramanian
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