The Gujarat High Court recently refused to interfere with an order passed by the Executive Engineer of the Surat Municipal Corporation, directing removal of an alleged "Madrassa" said to be constructed on a government land, on the ground that the construction was without prior permission of the competent authority.
"In the opinion of the Court, in absence of any evidence on record regarding actual running of educational institution and there is nothing on record to indicate any permission to running educational institution or building permission to put up construction of educational institution and the factual assertion not being controverted that the premises were being used for commercial purpose, the Court is not inclined to interfere with the ongoing process, which according to the Court is in accordance with the provisions of GDCR," Justice AY Kogje said.
The Petitioners, Madrasa-e-Anware Rabbani Waqf Committee, had filed a petition for the quashing of the impugned notice and order which declared that the Petitioner-Waqf was unauthorised occupant of the government land and the construction on such land was illegal. The Petitioner also sought a direction to the Respondent authorities for the regularisation of the construction of the premises of the Petitioner.
The Petitioner's case was that the subject land was originally owned by five brothers and by way of an oral gift deed had been transferred in favour of the Waqf which was representation by the Petitioner as its 'Muttwali'. The Petitioner thereafter was running a 'Madrassa' to provide education to Muslim students. However, since the transaction was an oral gift deed, the same could not be entered into the revenue record. Subsequently, in 2021, the City Survey Superintendent under Section 61 of the Land Revenue Code ordered the removal of the construction of the Madrassa on the ground that the construction was illegal even as a penalty was imposed on the Petitioner.
The Waqf Tribunal directed the petitioner to submit an application for fresh development permission or regularization along with necessary plans and directed respondent Nos.1 and 2 to decide such application in accordance with law. However, vide an order of 28th March 2022, the Respondent (Executive Engineer) ordered the removal of construction within 7 days. Hence, the present proceedings were instituted.
Per contra, the Respondent authorities submitted that the subject land was acquired by the government in 1967 and the original owners had received compensation in this regard. The land, was therefore, owned by the State authorities and the Petitioner had any legal right to occupy the structure nor did the Madrassa own any permissions for the safety of children. It was submitted that the Petitioner was coming in way of development of the land for public purposes.
Justice AY Kogje observed that the photographs of the property did not indicate the running of the school but rather the shutters showed that there was a commercial establishment (garage). Further, in issues of running educational institutions, the same is governed by the Gujarat Development Control Regulations along with permission of the authorities. There was nothing on record to show that the construction was carried out for developmental purposes. No evidence was placed that students were studying in the establishment.
Further, the land in question, owned by the five brothers had been duly compensated for in 1967 and a possession receipt was issued to that effect by the brothers. To the Bench it seemed that the Petitioner and other occupants of the plot were taking advantage of the fact that no revenue records were present. The State Government was advised to monitor the situation closely to correct such lapses, including holding public servants responsible.
The Court said that the Petitioner had also failed to show any renovation and 'construction completion' certificate to the State in response to the impugned notice issued under Section 260(1)(a) of the Gujarat Provincial Municipal Corporations Act, 1949. Additionally, because the Petitioner could not advance any document to prove lawful occupation, the Petitioner's property could not get the development permission or regularisation of construction of any nature.
Keeping in view all these reasons, the Bench was not inclined to interfere with the process initiated by the State authority. Accordingly, the petition was dismissed.
Case Title: MADRASA-E-ANWARE RABBANI WAQF COMMITTEE v/s SURAT MUNICIPAL CORPORATION
Case Citation: 2022 LiveLaw (Guj) 180