The Uttarakhand High Court dismissed a Public Interest Litigation (PIL) filed seeking direction to the respondents to complete the Survey of unregistered existing waqf properties under the provision of section 4 and 5 of the waqf Act, 1995 which is pending since 2005 within prescribed time.
The PIL further seeks direction”-
-to the respondent to rebuild the illegally demolished Mazars of Muslim Community on the expenses of the concerned department.
-to the respondents to compensate for the damages caused by illegal demolition of Mazars by respondents to the management committee / Mutawally of demolished Mazar.
-to the respondent to lodge the F.I.R to penalise the responsible officers who are involved deliberately in the illegal demolition of the Mazars of Muslim Community in violation of Article 15 of The Constitution of India.
The case of the petitioners is that the Government and the district authorities have failed to perform the duties vested in them to protect public user Auquaf (religious structures like Graveyard, Mazar, Khankah, Tombs of Muslim Community) by completing the survey of existing unregistered Waqfs, and publishing a Gazette Notification in the State according to the provisions of Section 5 of the Waqf Act, 1955, which, the petitioners state, has not been done since 24.11.1984.
On a reading of the Petition, the Division Bench of Chief Justice Vipin Sanghi and Justice Rakesh Thapliyal noted that the purpose of filing of the Petition, primarily, is to seek regularization of religious structures raised on encroached public land. This is evident from the following averments :-
(i) The petitioners make a reference to the notice issued by the State of Uttarakhand, through the Secretary Forest Department, to petitioner , stating that the Mazar Jalal Shah Mastan Shah, subject matter of the notice, is illegal, since it is situated on the land belonging to the Forest Department.
(ii) The petitioners talk about the notice issued by the State of Uttarakhand, through the Secretary Forest Department dated 12.01.2023, in respect of the Mazar falling on forest land.
(iii) The petitioners talk about the notice issued by the State of Uttarakhand, through the Secretary Forest Department on 13.03.2023, in respect of Mazar Nathathan Peer Baba, which is also situated on forest land.
(iv) The petitioners state that, on official enquiry being made about illegal religious structures like Mazars, Temples, Gurudwaras and Churches situated on forest land, it was found that 155 Hindu Temples, 10 Mazars and 2 Gurudwaras were existing on encroached forest land. The petitioners have alleged that, while the religious structures, belonging to the Muslim Community, have been demolished, not a single Temple has been demolished.
On perusal of the Petitionthe Bench noted that the purpose of filing the Petition is, primarily, to seek protection in respect of Mosques, Mazars, Dargahs etc., constructed on encroached public land.
The Court have already considered this primary issue in Writ Petition (PIL) No. 82 of 2023 decided on 26.05.2023, titled as “Shri Tafazzul Hussain Ansari v. State of Uttarakhand and others”.
After noticing the provisions of the Waqf Act, 1955, the Bench observed that, under the Muslim Law, a Waqf can be created in several ways, but primarily by permanent dedication of any movable and immovable property by a person professing Islam for any purpose recognized by Muslim Law as pious, religious or charitable. This Court had observed that dedication of his property by a Muslim is essential. Since the petitioner had failed to bring to the notice of this Court any specific instance, where a Waqf has been created by dedication of his own property by a Muslim for any purpose recognized by Muslim Law as pious, religious, or charitable, the Bench dismissed the said Petition.
In this case as well, the Bench found that the petitioners have not pointed out a single instance, where a property claimed as a Waqf was, in fact, dedicated by a person professing the Muslim religion, for one of the aforesaid purposes, which may have been directed to be demolished by the State.
The Counsel for the petitioners does not dispute the fact that the Petition is squarely covered by our judgment in Shri Tafazzul Hussain Ansari (supra).