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Dwarka Demolition: Gujarat High Court Dismisses Pleas Seeking Protection Of Alleged Religious Structures From Coercive Action
Lovina B Thakkar
4 Feb 2025 1:09 PM IST
The Gujarat High Court on Tuesday (February 4) dismissed a batch of petitions seeking protection from demolition of certain alleged religious structures at Beyt Dwarka.The petitions challenged the notices by Okha Nagarpalika directing removal of "unauthorised construction/encroachment within three days", failing which, demolition of the same had been been indicated.Justice Mauna M Bhatt...
The Gujarat High Court on Tuesday (February 4) dismissed a batch of petitions seeking protection from demolition of certain alleged religious structures at Beyt Dwarka.
The petitions challenged the notices by Okha Nagarpalika directing removal of "unauthorised construction/encroachment within three days", failing which, demolition of the same had been been indicated.
Justice Mauna M Bhatt while dictating the order said, "I have considered everything...regarding the user of land...all the decisions relied upon by all parties...the present petitions do not call for any consideration. All writ petitions are therefore dismissed". The court also rejected the petitioners' plea for continuation of interim relief granted last month, for a further period of 15 days.
The court in its order considered the question whether merely by usage of lands in question for a particular purpose, when admittedly the lands are not owned by the Petitioner, can the land be considered to be Waqf property of the Petitioner Trust.
The court noted that while the petitioner Trust is registered in Public Trust Register (PTR), however the concerned Survey numbers of the lands in question are not reflected in the PTR. It also noted that as per the mutation entries "lands in question are shown as Government Land or Gauchar Land".
"From mutation entry no.219 in village form no.6, it is evident that collector gave these lands to Gram Panchayat and in turn Gram Panchayat appears to have demarcated these lands for use as Qabrastan. The said mutation entry no 219 dated 11.04.1967 was never challenged and is final till date, therefore, the submission that the properties in question are part of the Petitioner Waqf is not accepted," the order states.
With respect to the usage of the property as a Waqf, the court said, "In this case nothing is brought on record which would indicate that the lands in question have been designated as 'Waqf Property'. No list published by the State Government as contemplated under Section 4 of Waqf Act has been produced which could substantiate case of the Petitioners that the lands are Waqf Property. Therefore also, no case is made out that the lands in question being Waqf by registration or Waqf by usage, as defined in Section 3 (r) of the Waqf Act".
With respect to another land in question, the court noted that Survey refers to the land as Gauchar Land in the Revenue Records and admittedly no construction is permissible on Gauchar Land. With respect to a land which had a Dargah on it, the court noted the State's submission that no demolition will be done of that Dargah.
Background
The petitioner–Bhet Bhadela Muslim Jamat had argued that it was registered under Bombay Public Trusts Act vide, once the Waqf Act, 1995 came into force, the petitioner Trust was deemed to be registered under Section 43 of Waqf Act, 1995 and, therefore, the property in question (Qabrastan) is property which is "under the control and supervision of Waqf".
With respect to one of the land in question, the petitioner said that it had a bearing Survey number and was used as Qabrastan for burial of Muslims of Village Bet prior to independence. It further said that the Collector, Jamnagar in 1967 had placed this land along with other lands in the administration of Panchayat. A mutation Entry was recorded in village Form No.6 however, the name of Qabrastan is still existing in the revenue records. It was argued that from the documents on record, the lands in question are shown as Qabrastan or Dargah land used for burial of people of Muslim religion, hence notices for encroachment or unauthorized construction are contrary to the records. On the issue of unauthorized construction on Qabrastan or encroachment on Gauchar Land the petitioner said what was constructed are certain structures on Graveyard for religious observance, and the authority erred in treating it as un-authorized construction.
Meanwhile the petitioner had relied on the decision of the Apex Court in the Re: Directions in the matter of demolition of structures (2024) and contended that the procedure prescribed has not been followed as the state did not conduct an inquiry or provide an opportunity for a hearing before issuing the notices. The Petitioner also argued that the demolition drive targeted religious structures violating the principles of natural justice.
Meanwhile the State had argued that the mutation entries and PTR clearly indicates that the subjected land belongs to government as the concerned survey numbers are not recorded in the revenue records as a part of trust property which confirm the petitioners have no ownership. Referring to the Government Resolution the State contended that the Qabarastan land remains government property and cannot be transferred to any trust or waqf and the land is demarcated only for burials and no other construction is allowed. The counsel said that demolition drive was carried out in a phased manner adding that houses of pujaris of temple all belonging to majority community was also peacefully removed , refuting the contention that harsh action taken without following the principles of natural justice.
The State's counsel had further argued that because of the region's geographical situation, the said region has become a hub for anti-national activities particularly, smuggling of narcotics for which FIRs have been lodged. It was contended that antisocial issues and elements are being faced on account of misuse of the structures in question, adding that in the past three years 38 fishermen from Dwarka who have been apprehended by Pakistan authorities and have remained in jail in Pakistan. It was argued that intelligence feedback had revealed that these fishermen were indoctrinated in Pakistan during incarceration and were sent back to India.
Findings
On the petitioner's reliance on Re: Directions in the matter of demolition of structures the high court said, "In the opinion of this Court the said judgment will not be applicable since in Paragraph 91 the Hon'ble Supreme Court has held that such directions will not be applicable if there is unauthorized structure in any public place such as road, street, footpath, abutting railway line or any river body or water bodies and also to cases where there is an order for demolition made by a Court".
The court further referred to certain government resolutions pertaining to Qabrastan which stated that ownership of land will be of the government and if the stated land is used for any other purpose, other than it was demarcated, the State Government can take it back without any notice and without any delay. It also refers that under no circumstances the allotted land can be transferred by any committee, any Trust or Waqf in its name. Taking note of the pictures in the petition, the court said that "evidently all huge structures are constructed without any prior permission".
The high court further referred to Supreme Court's decision in Rajendra Kumar Barjatya v/s U.P. Avas Evam Vikas Parishad and others (2024) where it was held that illegality or unauthorized construction cannot be perpetuated and if construction is made in contravention of Act/Rules it will be construed as illegal or unauthorized construction which has to be necessarily demolished.
The high court had on January 22 reserved its verdict in the matter. During the hearing, the Counsel for the Petitioner contended that the notices issued for Demolition by the State are without due procedure of law, the notices are vague in nature and lack details. He had also 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".
He had said that the land is used as Kabarastan, furthermore, contended that the property is covered under the provision of Section 2 (19) – Waqf by user. He 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 counsel then referred to the case of the Apex Court and Privy Council wherein 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. The Counsel then requested for regularization as per the guidelines of the Supreme Court.
The Government Pleader, GH Virk had meanwhile clarified about the contention 'waqf by user' stating that it is beyond the scope of inquiry. He also pointed out that no inquiry was ever made before the Charity Commisioner or Waqf Board in 20 year to be recognized as 'waqf by user'. Lastly, referring to the Government Resolution of 1989, he submitted land designated for a Kabarastan cannot have constructions on it, and if built, such structures would not be considered waqf.
He said 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.
Case Title: Bet Bhadela Muslim Jamat Through President Kadarbhai Abhubhai Malek & Anr. vs State of Gujarat and Batch