WAQF BOARD, RAJASTHAN versus JINDAL SAW LIMITED & ORS on 29 April 2022

1. The challenge in the present appeals is to an order dated29.9.2021 passed by the High Court of Judicature for Rajasthan atJodhpur, whereby the writ petition filed by respondent No. 1[1] was alloweddirecting the appellant and respondent Nos. 2 to 8 not to interfere withthe action of the writ petitioner in removal of the structure forming partof Khasra No. 6731 at Village Pur, Bhilwara, Rajasthan.

2. The writ petitioner was granted lease of an areaadmeasuring1556.7817 hectares vide lease deed dated 8.12.2010 forthe mining of Gold, Silver, Lead, Zinc, Copper, Iron, Cobalt, Nickle andassociated minerals near Village Dhedwas, Tehsil and District Bhilwara,Rajasthan.

3. It was pointed out that the Tehsildar, Bhilwara had submitted areport on 3.12.2010 after conducting an inquiry along with RevenueRecord Super Impose Site Plan in respect of Land Numbers, admeasuring142-15 bigha of village Samodi; Land Numbers admeasuring 33-09 bighaof village Dariba; Land Numbers admeasuring 40-03 bigha of villagePansal; Land Numbers admeasuring 127-02 bigha of village Malola;Land Numbers admeasuring 241-14 bigha of village Dhulkheda; LandNumbers admeasuring 748-02 bighas of village Pur after obtaining reportfrom the concerned Patwaris. Such report shows that Land Number897 of village Samodi is a Devsthan i.e. place of worship. It wascommunicated that if the mining work is carried out without causingharm to Devsthan and not using the harmful explosives, then there is noobjection in carrying out mining work in that survey number. In thedetailed report, certain survey numbers in different villages such asSamodi, Dariba, Pansal, Malola are mentioned wherein there was aproposal not to grant permission and also certain other survey numberswherein permission was proposed to be given. In Survey Nos. 543 (6Bigha 11 Biswa), 498 Min. (8 Bigha 6 Biswa) and42 (3 Biswa) of MalolaVillage, there was a proposal not to grant permission in view of barrenland near religious place. Similarly, in Dhulkheda Village, the proposal toundertake mining was not granted in Survey Nos. 219 and220on accountof religious place and in Survey No. 365 for the reason of graveyard.However, in respect of the area in question in Village Pur, the mining 1 For short, the ‘writ petitioner’

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Awas proposed to be carried out in Land Survey No. 235. The permissionwas proposed to be granted in respect of Survey No. 6731 measuring 158Bigha 12 Biswa. It was thus proposed that permission is not to be grantedin total of 213 Bigha 11 Biswa, for the mining work whereas in 325 Bigha19 Biswa, permission was to be granted. It is thereafter that the lease wasexecuted on 8.12.2010 by the State in favor of the writ petitioner.B

4. The Survey Commissioner, Waqf of the State of Rajasthan,conducted survey of the waqf properties in the year 1963. In the saidsurvey, a structure was found named as ‘Tiranga Ki Qalandari Masjid’in the survey report. On the basis of said Survey report, a notificationwas published on 23.9.1965 in which ‘Qalandari Masjid of Tiranga’ locatedCat village Pur was notified as wakf. Later, on the basis of the said GazetteNotification, the ‘Tiranga Ki Qalandari Masjid’ was entered in the waqfregister as admeasuring 12x9=108. Another survey was conducted invillage Pur, Bhilwarain accordance with the Waqf Act, 1995[2]. The‘Qalandari Masjid Tiranga’ was found in existence in Survey NumberD931 as per the report dated 15.1.2002. Part III (b) of the said surveyreport gives dimension of the mosque as 25x25x25x25, bounded on allsides by Hills.

5. It may be stated that Survey No. 931 is not included in the listof survey numbers of which lease was granted. There is no reference toESurvey No. 931 as to whether lease is to be granted or not to be grantedfor the same.

6. It appears that the Anjuman Committee addressed a letter tothe Chairman of the appellant-Board on 17.4.2012 to the effect that onTiranga Hill in Village Pur, there is a wall and Chabutrah (platform) onso-called Qalandari Masjid wherein olden times laborers used to offerFprayers. The elders had informed that they have not seen anybodypraying Namaaz nor there is access to water and stairs to reach theplatform. The office of the appellant responded on 18.4.2012 that thearea consisting of the platform over the Tiranga Hill should be savedfrom mining. The said letters, when translated, read thus:-G“17.4.2012

“It is submitted that there is a wall and delipidated platforms/chabutrah at the so-called Qalandari Masjid situated at TirangaHills where earlier some laborers used to offer prayers. By H2 For short, the ‘Act’

enquiring from the elderly people, it came to our knowledge thatno one was seen offering prayer/namaz at such place. Further,neither there is any water there, nor there are stairs.

The miners informed that due to mining, the wall and chabutrah,which are already in a dilapidated condition, could fall.

When we talked about this to the miners present there, then theyrespectfully agreed to reach to a settlement. Hence, kindly obligeus by issuing directions/guidance to settle the issue.”

18.4.2012

“Subject- Relating to taking steps for the chabutara/platform asper the Shariyat.

In reference to your letter dated 17 April 2012.

In relation to the abovesaid letter, it is stated that there is achabutara/dilapidated platform at the Tiranga Hill situated at VillagePur which is sought to be protected from mining activities andthere have been talks of arriving at a settlement.

Hence, considering the present circumstances in this context aswell as keeping in mind the benefit of Wakf, take the requisitedecisions at your end and also inform the Wakf Board about thesame. Original is attached herewith.”

7. On 23.4.2012, the Chairman of the appellant-Boardcommunicated to the Collector and to the Superintendent of Police thatthe communication dated 18.4.2012 is being misinterpreted as the purposewas to safeguard the interest of the waqf but the members of the AnjumanCommittee have acted for personal gain and, therefore, action should betaken. In response to the said letter, the District Magistrate communicatedthat an FIR has been registered and a sum of Rs.65 lakhs has beenrecovered. It was in this background, respondent No. 1 herein filed awrit petition before the High Court.

8. The High Court constituted an Expert Committee to examinethe following two questions:

“(i) As to whether the structure existing within the mining leasearea of the Petitioner was a mosque or structure which can beremoved for the purpose of carrying out lease hold activities withinthe said area.

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808SUPREME COURT REPORTS

A(ii) The Committee shall also ascertain as to whether any illegalmining activity within the mining lease area of the petitioner and ifso whether the same was carried out by the petitioner-companyor any other entity.”

9. It has come on record that such Committee was chaired byBShri R.K. Sinha, Controller General (Retd.) of India Bureau of Minesalong with Shri O.P. Kabra, nominee of the Secretary Mines, Departmentof Mines and Geology, Rajasthan and Smt. Nandini Bhattacharya Sahu,Regional Director (West), Archaeological Survey of India. Shri O.P.Kabra, nominee of the Secretary Mines was later substituted by ShriA.K. Nandwana, Superintending Mining Engineer, Bhilwara. TheCCommittee submitted its report on 10.1.2021, reporting that the dilapidatedstructure existing at Khasra No.6731 is neither a mosque nor any structurewith archaeological or historical relevance. Shri A.K. Nandwana, oneof the members had partially dissented with the report by a handwrittennote stating that steps should be taken to stop the illegal mining.D

10. Learned counsel for the appellant argued that such ExpertCommittee constituted had no representative of the appellant and theappellant was not associated with the report so submitted, therefore, thereport cannot be made basis of rejecting the structure on the Hill as nota religious structure. It was contended that whether the structure is aEwaqf or not has to be decided by the Waqf Tribunal in terms of Section83 of the Act and not in a writ petition under Article 226 of the Constitutionof India.

11. Dr. Manish Singhvi, learned senior advocate for the Statesupplemented the arguments raised to contend that in terms of the leaseFdated 8.12.2010, the decision as to whether the place is a public groundover which the mining activity can be carried out has to be determinedby the State Government. The State Government has determined thatmining lease is not permissible over Survey No. 6731.The relevantconditions read as under:

G“No building etc. upon certain places:-

1. No building or thing shall be erected, set up or placed and nosurface operations shall be carried on in or upon any public pleasureground, burning or burial ground or place held sacred by any classof persons or any house or villages site, public road or other placewhich the State Government may determine as public ground norH

in such a manner as to injure or prejudicially effect any buildingsworks property or rights of other persons and no land will be usedfor surface operations which is already occupied by persons otherthan the State Government for works or purposes not included inthis lease. The lessee/lessees shall not also interfere with anyright of way well or talk.”

12. On the other hand, Mr. Ranjit Kumar and Mr. C.S.Vaidyanathan, learned senior counsels appearing for the writ petitionercontended that as per the detailed report submitted by the Tehsildar, onthe basis of which permission to lease was granted, Survey No. 931over which the said structure is found in the survey report was not partof the lease. Survey No. 6731 measuring 158 Bigha 12 Biswa was theone over which the writ petitioner was granted permission to do themining work but there is no document or report to show that any part ofSurvey No. 6731 was ever declared to be a religious structure within themeaning of waqf as defined under the Act. The learned counsel for theparties furnished the photocopies of the original documents on the basisof which reliance was placed by the appellant that the Tiranga QalandariMasjid in Village Pur is a mosque and, therefore, no mining activity canbe undertaken.

13. The first document so produced is undated but the subjectshows that it is in respect of Auqaf to be registered in Ajmer and SunelRegions of the State till 5.1.1959 and in the rest of Rajasthan by 1.4.1955.A reading of the said report shows that it does not have any surveynumber, though the value of waqf was assessed at Rs.900/- and thepurpose of use was for Namaaz. Thereafter, a notification was publishedon 23.9.1965 declaring Qalandari Masjid of Tiranga as the waqf propertyas the nature and object are pious, religious and for offering prayers.The appellant has produced an extract from its register pointing out that12x 9measuring 108 is Tiranga Ki Qalandari Masjid. Another documentproduced by the appellant is the survey report dated 15.1.2002 to theeffect that the Qalandari Masjid on Tiranga Hill is situated in Survey No.931.

14. With this factual background, Mr. Ranjit Kumar and Mr. C.S.Vaidyanathan have argued that the claim of the appellant is whollyuntenable as at no point of time, any revenue record shows any religiousstructure on the land comprising in Survey No. 6731. In fact, the religiousstructure is said to be in existence over Survey No. 931. Still further, the A

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Arecord of the appellant shows that the area of the religious structure is108 feet whereas in the second survey report, the area is shown to be525 feet. Hence, there is a discrepancy about the area over which thereligious structure is in existence.

15. It has also been contended that a perusal of the photographsBshows that the structure is totally dilapidated without any roof and infact a wall and some broken derelict platform exist at the spot. The areais surrounded by vegetation and there is also nothing to suggest that thestructure was ever used for offering prayers (Namaaz) as neither thearea is accessible, nor there is any facility of Wazoo[3], which is stated to be an essential step before offering prayer. The experts from theCArchaeological Department have reported that the structure has nohistorical or archaeological importance. It is further contended that theTehsildar, before the possession was delivered, had given an extensivereport of each of the structure existing on the land proposed to be given.The lands for graveyard and other religious structures have been excludedDfrom the lease. Therefore, the act of identification carried out yearsbefore raising of the dispute done by the revenue officials in the courseof their official duties carry presumption of correctness. It shows thatthe structure had no religious value.

16. We have heard learned counsel for the parties at length andEfind no merit in the appeals. The Qalandari Masjid on Tiranga Hill as perthe document produced by the appellant is located on Survey No. 931.There is no assertion that the Survey No. 931 is changed as Survey No.6731. In fact, the old number of Survey No. 6731 is 9646 or may besome other number but positively not the survey number 931. Therefore,Fthe claim of the appellant is on a different portion of land and not theland leased to the writ petitioner. There is discrepancy in the total areaof the Masjid in the two documents, i.e., the extract produced by theappellant from the register and the second survey report. The letterdated 17.4.2012 by the Anjuman Committee is based upon hearsay andis not of any binding value.G

17. Still further, there is no evidence at any given point of timethat the structure was being used as a mosque. There is no allegationor proof of either of dedication or user or grant which can be termed 3 The practice of ritual purification i.e., to wash face, hands, arms and feet before dailyHprayer.

as a waqf within the meaning of the Act. Section 3 (r) of the Act readsthus:- “[(r) “waqf” means the permanent dedication by any person, ofany movable or immovable property for any purpose recognisedby 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 byreason only of the user having ceased irrespective of the periodof such cesser;

(ii) a Shamlat Patti, Shamlat Deh, Jumla Malkkan or by any othername entered in a revenue record;

(iii) xxx

xxx”

18. The report of the experts is relevant only to the extent that thestructure has no archaeological or historical importance. In the absenceof any proof of dedication or user, a dilapidated wall or a platform cannotbe conferred a status of a religious place for the purpose of offeringprayers/Namaaz.

19. The stand of the State Government that they have identified itto be a religious structure comprising in Khasra No. 6731 has not beenproduced on record. There is nothing on record that such decision if any,was arrived at after associating the writ petitioner. It is always open tothe State as lessor to exercise the powers conferred in it by the leasedeed after complying the principles of natural justice and on good andsufficient grounds.

20. In view of the above, we do not find any merit in the presentappeals. Consequently, the appeals are dismissed.

Devika Gujral

Appeals dismissed.

(Assisted by : Shevali Monga, LCRA)

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