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.

The Court at this point asked, “How would you justify that on this kind of a place, the construction is permitted and no permission is required prior (to) that?”

"I'm not justifying on that aspect. Im trying to say that this being a religious structure in view of Supreme Court judgment, proceedings (which need to be followed)...and regularization judgment where religious places have to be dealt with in particular manner, that proposition will apply and the case would have to be considered for regularization, re-location and removal," the counsel said. 

He pointed to a Supreme Court judgment pertaining to a case concerning graves wherein the apex court had said that in view of the dispute, relocation of graves can be permitted. 

The Court then asked, “So, in a nutshell their (State) contentions will go that it cant be re-located. You are ready for re-location.”

The GP then submitted that the State is not touching the grave so, the question of re-location does not arise and with the permission of the Court, the State is going to demolish only the illegal structures.

The Counsel said that he was claiming regularization under the order of the Supreme Court and and not under GRUDA (Gujarat Regularization of Unauthorized Development Act). The Counsel then clarified regarding the lands in subject and contended that in 1950 the lands were entered as government waste land and in 1955 it was entered as Gaucher land as per the revenue records.

On the contention that the structures in question would come under definition of 'waqf as user', government pleader (GP) GH Virk appearing for the State said that the same was not the scope of enquiry and the enquiry would happen if the State decides to remove the status of Kabarastan and to remove the grave.

 “When we will cross that river, we will cross that bridge,” he said. Further, he contended that the State would take those concerned steps that would be subject to fact finding inquiry by the Tribunal as per Section 83 and 85 of the Waqf Act.

He then submitted that the argument is only regarding the removal of structures and that it is "only the grave which is to be venerated and not the air-conditioned structure that surrounds the grave". He said that the State is not touching the grave but is proposing to remove "the brand-new structure" on the grave subject to the orders of the Court. The GP then argued that the contention of 'waqf by user' has to be supported by the application before Charity Commissioner or Waqf Board to incorporate the survey numbers and for last 20 years this has not happened.

The GP then lastly contended that rejoinder submissions are contested only the basis of the Government Resolution 1989 wherein it is stated that the land given for the purpose of Kabarastan, one cannot construct anything on it and if it is constructed that it would not be treated as Waqf  highlighting a 'negative connotation.'

With the above observations and submissions, the Court then reserved the orders and extended the status quo until the next hearing.

Case Title: Bet Bhadela Muslim Jamat Through President Kadarbhai Abhubhai Malek & Anr. vs State of Gujarat and Batch