In CIVIL APPEAL NO. 2788 OF 2022-SC- Dilapidated wall or platform cannot be conferred status of religious place for purpose of offering Namaaz; Proof of dedication or grant necessary: SC Justices Hemant Gupta & V. Ramasubramanian [29-03-2022]

Read Judgment: WAQF BOARD, RAJASTHAN v. JINDAL SAW LIMITED & ORS 

Tulip Kanth

New Delhi, April 30, 2022: While dismissing an appeal challenging the removal of a structure which was claimed to be a mosque, the Supreme Court has held that there was no proof of either of dedication, user or grant which can be termed as a waqf within the meaning of the Waqf Act, 1995.

The Division Bench of Justice Hemant Gupta and Justice V.Ramasubramanian said, “It is always open to the State 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.”

The Bench was considering an appeal  against the judgment of the Rajasthan High Court whereby the writ petition filed by the first respondent (writ petitioner) was allowed directing the appellant and other respondents to not interfere with the action of the writ petitioner in removal of the structure forming part of Survey  No. 6731 at Village Pur, Bhilwara, Rajasthan.

Herein, the writ petitioner was granted lease of an area for the mining of Gold, Silver, Lead, Zinc, Copper, Iron, Cobalt, Nickle and associated minerals near Village Dhedwas, Tehsil and District Bhilwara, Rajasthan.

The Survey Commissioner, Waqf of the State of Rajasthan, conducted a survey by which a structure was found named as ‘Tiranga Ki Qalandari Masjid’ in the survey report and a notification was published 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. Another survey was conducted in village Pur, Bhilwara in accordance with the Waqf Act, 1995 and the ‘Qalandari Masjid Tiranga’ was found in existence in Survey Number 931.

The Anjuman Committee addressed a letter to the Chairman of the appellant-Board on April 17, 2012 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 had not seen anybody praying Namaaz nor there is access to water and stairs to reach the platform. The office of the appellant responded on April 18, 2012 that the area consisting of the platform over the Tiranga Hill should be saved from mining. 

The Chairman of the appellant-Board communicated to the Collector and the Superintendent of Police that the communication April 18, 2012 was being misinterpreted as the purpose was to safeguard the interest of the waqf but the members of the Anjuman Committee had acted for personal gain. An FIR was registered and a sum of Rs.65 lakhs was recovered. It was in this background, that the first respondent herein filed a writ petition before the High Court.

The Expert Committee constituted  by the High Court submitted its report saying that the dilapidated structure existing at Khasra No. 6731 is neither a mosque nor any structure with archaeological or historical relevance but one of the members had partially dissented stating that steps should be taken to stop the illegal mining.

It was mainly contended from the appellant’s side 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.

The contention of the respondent was that a perusal of the photographs showed that the structure is totally dilapidated without any roof and in fact a wall and some broken derelict platform exist at the spot. The area is surrounded by vegetation and there is also nothing to suggest that the structure was ever used for offering prayers (Namaaz) as neither the area is accessible, nor there is any facility of Wazoo (the practice of ritual purification i.e., to wash face, hands, arms and feet before daily prayer), which is stated to be an essential step before offering prayer. 

The experts from the Archaeological Department had reported that the structure has no historical or archaeological importance. It was further contended that the Tehsildar, before the possession was delivered, had given an extensive report of each of the structures existing on the land proposed to be given. The land for graveyard and other religious structures had been excluded from the lease. Therefore, the act of identification carried out years before the raising of the dispute done by the revenue officials in the course of their official duties carry presumption of correctness. It showed that the structure had no religious value.

The Division Bench was of the opinion that the Qalandari Masjid on Tiranga Hill as per the document produced by the appellant is located on Survey No. 931. There was 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 Bench opined that the claim of the appellant was on a different portion of land and not the land leased to the writ petitioner. 

Observing that the letter dated April 17,2012 by the Anjuman Committee was based upon hearsay and was not of any binding value, the Bench held that there was 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. 

Emphasizing that there was no evidence at any given point of time that the structure was being used as a mosque, it was also affirmed that there was 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. 

On the report of the Experts, the Division Bench said, “The report of the experts is relevant only to the extent that the structure has no archaeological or historical importance. 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.”

Moreover, the Bench took note of the fact that the stand of the State Government that they had identified it to be a religious structure comprising in Survey No. 6731 had not been produced on record. Also, there was nothing on record that such a decision was arrived at after associating the writ petitioner.Thus, the appeals were dismissed.