Dwarka Demolition: Gujarat HC Reserves Verdict On Pleas Seeking Protection Of Alleged Religious Structures From Coercive Action

The Gujarat High Court on Wednesday (January 22) reserved orders on a batch of petitions seeking protection of certain alleged religious structures from demolition located at Beyt Dwarka. After hearing the parties Justice Mauna M Bhatt said, “Arguments of the parties are concluded. The matter is posted for orders. Status quo earlier granted is to continue till the next date of hearing.”The Counsel appearing for the Petitioner contended that the notices issued by the State are without due procedure of law, the notices are vague in nature and lack details. The Counsel then pointed that the notices were not issued under the Provision of Section 185 of the Gujarat Municipalities Act. The Counsel relied on the Supreme Court guidelines on demolition stating the structures are religious and the sentiments of the community are attached to it. The Counsel then pointed out that the structures are "Dargahs of the Peers (graves of a Saint over which a covering or structure is erected where people go and pay obeisance) and Madrasas (a college for Islamic instruction) where the religious teachings and instruction given to the children".The Counsel also submitted about the locus of the petitioner is connected to the subjected lands and contended that the lands are used as Kabarastan (burial graves of Muslims deceased) and managed by Beth Bhadela Muslim Jamat that came to be registered as a Trust as per the PTR (Public Trust Registration) on May 16, 1953 under the provisions of the Trust Act.The Counsel then contended regarding the certain survey numbers not reflected in the revenue records, the same forms part of the Kabarastan, an enquiry is required to be undertaken and it is to be examined by an authority. He pointed to the meaning of Waqf (Section 2(19)) under the Bombay Provision Trust Act, which points to a 'Waqf by user' that defines the usage of the present property. He also pointed to the definition of Waqf under the Waqf Act (Section 3(r)), that states “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”. The Court then orally asked, “In which capacity you will fall?”The Counsel answered that it will fall under Waqf by user i.e., the property concerned would describe as pious and religious as it is Kabaristan. Further, the Counsel relied on the Section of 40 (Decision if a property is [waqf] property), 83 (Constitution of Tribunals, etc) and 85 (Bar of jurisdiction of civil courts) of the Waqf Act.The Court then orally noted the submissions of the Counsel that the survey numbers required to the property is to be adjudicated by the Waqf Board or any other disputes is to be considered by the State Waqf Tribunal, Gujarat. The Court further orally noted that Section 40 gives power to the board to decide whether the property which used is waqf by user, Section 83 gives jurisdiction to the Tribunals and Section 85 bar the decision by the Court. The Counsel then pointed out that the prejudice of the order of demolition as there is no inquiry, no notice, lacks details whether the land is Waqf property or government property and the concerned authority to decide the demolition is not decided. The Court then orally remarked, “Please understand, they are not disputing, they say that it is a Kabarastan which is given, it is a state property which has been given to you for the usage of Kabarastan. They are only concerned with the super-structures. They are not against (Kabarastan) and this Court would also not entertain that since it is used for Kabarastan, given by the State authorities, let it be used as a Kabarastan and we are not enlarging the scope of the petition.”The Government Pleader then contended that it is between the petitioner and the State to thrash-out before the (concerned) authority. The Court then orally noted “Mr. Hakim, I have understood the point that so far as any dispute that they are raising, it is to be adjudicated as per the provisions of Bombay Trust Act read with the Waqf Act and the Tribunal is the authority. If the Tribunal's decision is by in large has attainted finality, unless and until 226 (Article) petition is referred by this Court and entertained.”The Counsel for the petitioner contended that as per the order of this Court, the Apex Court and Privy Council it is stated if the property is recorded as Kabrastan in the revenue record, maintained by the government then such property becomes 'Waqf by user' and provision and protection under the Waqf Act would be applicable. Furthermore, he argued that whether the structures are individual structures or religious structures, it is the question of enquiry and it would be a prejudice to the petitioners if the structures are demolished without the following the due-procedure....

Dwarka Demolition: Gujarat HC Reserves Verdict On Pleas Seeking Protection Of Alleged Religious Structures From Coercive Action

Lovina B Thakkar

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