Conversion Of Public Places Of Worship Into Residences By Caretakers Is Contrary To Law: Delhi High Court Orders Waqf Board To Secure Mosque Property

The Delhi High Court has ruled that conversion of public places of worship into residences and their occupation by persons, who take care of the places, is contrary to law.

The Court was dealing with a writ petition filed by the one Zahir Ahmed, who came into occupation of a property located next to the Masjid Zabta Ganj in Delhi, due to his father’s position as an Imam of the mosque. Ahmed filed a writ petition challenging the eviction order passed by the Sub Divisional Magistrate (SDM), Chanakyapuri. The possession of the property has already been handed over to Delhi Waqf Board.

Justice Prathiba M. Singh said the family of an Imam in a mosque cannot claim any rights in the property of the Mosque, as the property vests in the Waqf and the Imam is merely appointed for the purposes of conducting prayers and taking care of the Waqf property.

"The Imam occupies the property in a capacity which is fiduciary in nature on behalf of the Waqf and any attempt to claim independent rights in the property would be impermissible," said the court.

Noting that the Mosque was allotted in favour of the Delhi Waqf Board by the Delhi Administration in 1945, by way of a Gazette Notification, the court said even though an independent Imam was appointed for the mosque in 1981, Ahmed continued to encroach and occupy the property next to the mosque in an illegal manner for several decades.

An eviction notice was issued by the CEO of the Waqf Board in 2009 against Ahmed and his workers, who were claimed to have illegally trespassed in the property of the Masjid Zabta Ganj. In 2020, an eviction order was passed by the SDM, Chanakyapuri. Later, the eviction drive was also undertaken.

In the writ petition filed before the Delhi High Court, Ahmed argued that he and his family had been living in the property for several decades and it was separated from the mosque by a wall.

He pleaded that in 2005, the Mohd. Asad, the current Imam of the Masjid, along with others, demolished the wall which separated the property from the mosque. Thereafter, various orders were passed by the high court in Writ Petitions filed by the occupants of the property, including Ahmed, leading to proceedings under the Waqf Act, 1995.

He alleged that since 2009, various eviction orders had been passed by the Waqf Board and the SDM. Ahmed averred that since he has enjoyed continuous and uninterrupted possession of the property since the last several decades, he was not liable to be dispossessed.

On the contrary, the Waqf Board submitted before the High Court that the petitioner’s father was discharging the duties of an Imam in the mosque and the petitioner had come into possession of the property due to his father’s position. It pleaded that the mosque was allotted to the Delhi Waqf Board by the Delhi Administration in 1945. Since then, the Waqf Board is in occupation of the property, it said.

It thus pleaded that Ahmed and his alleged workers were unauthorized occupants and encroachers in the Waqf property and cannot claim any rights in the property.

The court said the writ petition was yet another example of the manner in which public places of worship are converted into private tenements and rights are sought to be claimed by priests, Pandits, Imams, caretakers and their families, in an illegal and unauthorised manner.

“Such public places of worship are converted into residences and are occupied by the persons who take care of the said places including by their extended families, domestic help and other trespassers, which would be contrary to law. In some cases, this Court has also noticed that the said places of worship are extended beyond the allotted land and are converted into commercial property, and rents/lease amounts are also sought to be collected in an illegal and unauthorised manner,” the Court observed.

The court said the mosque is located in the centre of Delhi, near India Gate and the land allotted to it in 1945 was 0.095 acres.

"The Petitioner herein, on a query from the Court, specifically admits that there is no title document to the property in question in his favour, which obviously there cannot be. The Petitioner's father was an Imam in the mosque and in the Court’s opinion, it could be due to this reason that the Petitioner unauthorisedly came into occupation of the said property,” the court said.

While holding that the family of an Imam in a mosque cannot claim any rights in the property of the mosque, the bench said Ahmed and the other individuals, who occupied the premises on his behalf, were clearly unauthorised occupants and encroachers, who had no right in the said property.

“The Petitioner who was the son of the Imam, being merely a family member, has himself occupied and has permitted other to occupy this property for several decades without any rights. An independent Imam was appointed in the said property/mosque in 1981. However, in an illegal manner the Petitioner continued to encroach and occupy the property next to the mosque,” the bench ruled.

While dismissing the writ petition and directing the Waqf Board to secure the land allotted to it under the Gazette Notification, the Court added: “In view of the fact that, admittedly, the Petitioner has been unable to show any title to the property in question and keeping in mind the nature of the property which is a place of worship allotted to the Waqf, in order to uphold public policy and to curb illegalities of this nature, this Court holds that the Petitioner is liable to pay occupation charges to the Waqf Board for unauthorised occupation as also costs of the litigation.”

The court ordered the petitioner to pay a sum of Rs 15 Lakh to the Delhi Waqf Board within a period of eight weeks, considering the duration of "illegal occupation of the premises and the location of the property". It also granted the Waqf Board a liberty to seek enforcement of the order in accordance with law. 

The court has further directed the Waqf Board to ensure that no land beyond the allotted area is occupied by any person, including the current Imam, his family or other occupants on his behalf. The allotted land shall be used only for the purposes of the allotment i.e., to run the mosque and no illegal use shall be permitted, the court said.

Case Title: Zahir Ahmed vs. Government of NCT Of Delhi Through District Magistrate & Ors.

Citation: 2023 LiveLaw (Del) 233

Counsel for the Petitioner: Mr. Khan Zulfiquar Khan and Mr. Deepak Kumar Mishra, Advocates

Counsel for the Respondent: Mr. Wajeeh Shafiq, Standing Counsel for Delhi Waqf Board. Ms. Lubna Naaz, Advocate. Mr. Raghuvendra Upadhyay, Assistant Standing Counsel for R-4

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