Places Of Worship Act Only Prohibits 'Conversion' Of Religious Character, No Bar On State Acquisition For Public Purpose: Allahabad High Court

With this, a Bench of Justice JJ Munir and Justice Arun Kumar dismissed a writ petition seeking to halt the widening and beautification of the Dalmandi area in Varanasi, a project undertaken as a part of the UP Govt's Shri Kashi Vishwanath Dham Corridor development.

"…the Act of 1991 prohibits the conversion of place of worship of one religious denomination into another. It does not derogate from the State's authority to acquire any place of religious worship for a secular and public purpose, like development of a road or augmentation of infrastructure or any similar activity", the bench observed in its 32-page order passed today.

Briefly put, the petitioners, 6 tenants and shopkeepers operating in the Dalmandi area, had moved the High Court seeking a writ of mandamus to prevent their dispossession from the area. They also sought protection for 6 ancient mosques in the area that were proposed for takeover and demolition as part of the project.

For context, this area is located around 800 meters from the main Kashi Vishwanath Temple, and the six ancient mosques proposed for demolition by the administration are: Anjuman Intezamia Masjid, Masjid Rangile Shah, Masjid Ali Raza Khan, Masjid Karimullah Baig, Masjid Nisaran, and Masjid Sangamarmar.

The petitioners submitted that no public purpose, which the respondents say is involved, would be served by depriving thousands of citizens of their right to livelihood and shelter, as well as their right to worship, by demolishing the 6 ancient mosques located in the area.

They argued that these mosques, having existed since before August 15, 1947, were protected under the Places of Worship (Special Provisions) Act, 1991 and its demolition would violate the 1991 Act.

Lastly, the petitioners argued that the proposed acquisition for the expansion of the project route was arbitrary, illegal, and a violation of their fundamental rights, and that it was designed to "target a particular community".

However, the Court, while recording this plea, described such averments as "odd pleadings" in the course of the order.

The state, on the other hand, argued that the 1991 Act does not prohibit the Government from acquiring worship land for larger public purposes.

It was submitted that under the RFCTLARR Act of 2013, the Government has the sovereign power to acquire any property, including religious property, for a public purpose, such as building roads, highways or public infrastructure

The State also argued that Sections 51 and 91 of the Waqf Act, 1995, also permit such acquisition, subject to due process.

High Court's observations

Against the backdrop of these submissions, the bench led by Justice Munir observed that the petitioners, being mere tenants and not owners of the properties in question, had limited standing to challenge the acquisition process.

"We would think that the petitioners are more or less here, in order to protect their business and source of livelihood, rather than proprietary rights", it noted.

The Court further noted that the title holders had not come forward to challenge the project, emphasizing that in matters of land acquisition under the 2013 Act, it is primarily the title holder who has locus to object, negotiate a sale or suffer an acquisition.

The Court also was not persuaded that, being Muslims, the petitioners themselves had a right to protect the mosques in question. It remarked thus:

"The mosques are admittedly registered Waqf, with their own Mutawalli in each case. No doubt, members of the Muslim community may come forward in certain cases, but essentially it is the Mutawalli and the Waqf Board, who have to protect such properties".

Now, on the argument regarding the violation of the 1991 Act if the Mosques are acquired by the state, the bench referred to Sections 3 & 4 of the Act and harmoniously construed them.

It noted that the Act intends to prohibit the conversion of a place of worship (Church, Temple, Mosque) from one religious denomination to another, preserving the status quo as it existed on the 15th day of August, 1947.

The bench clarified that it was never intended to act as a shield against the State's sovereign right to acquire land for public welfare, such as building roads or essential infrastructure.

"The purport of the Act of 1991 is not to place beyond the pale of authority of the State's right as the owner paramount of all lands in the territory of India and to acquire and use it for any public purpose, subject, of course, to the owner's right to receive just and fair compensation. That is what the doctrine of eminent domain, after all, means. The Act of 1991 is not meant to derogate from that right of the State", the Court remarked.

The Court also relied upon the landmark Supreme Court decision in Dr M. Ismail Faruqui and others vs. Union of India, wherein it was held that a mosque is not an essential part of the practice of the religion of Islam and namaz (prayer) by Muslims can be offered anywhere, even in open and hence, its acquisition is not prohibited by the provisions in the Constitution of India.

The Court made it clear that its observations were rendered "without prejudice to the rights of the State, the Waqf Board and the Mutawalli of mosques concerned to suit their rights in appropriate proceedings, if and when the occasion arises".

Against this backdrop, finding that the petitioners had no right or cause of action to seek any relief, the Bench dismissed the petition.