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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
A.Y. KOGJE, J.
Madrasa-E-Anware Rabbani Waqf Committee - Petitioner
Versus
Surat Municipal Corporation - Respondent
R/Special Civil Application No. 8283 of 2022
Decided On : 05-05-2022
Article 226 - Waqf Construction - Gujarat Provincial Municipal Corporations Act, 1949, Section 260(1)(a), Section 260(2)
Fact of the Case:
The petitioner, a Waqf, sought to challenge a notice and order issued by the Executive Engineer under the Gujarat Provincial Municipal Corporations Act, 1949, regarding the construction of a school (Madrassa) on a disputed plot of land. The petitioner claimed that the land was transferred to the Waqf by way of oral gift and had been used for educational purposes.
Finding of the Court:
The Court found that there was no evidence of the school (Madrassa) being run on the premises and observed that the construction appeared to be used for commercial purposes. The Court also noted that the land had been acquired by the State for public interest and that the petitioner had failed to provide evidence of ownership or permission for the construction.
Issues: Dispute over the construction of a school (Madrassa) on disputed land, lack of evidence of educational activity, ownership, and permission for construction.
Ratio Decidendi: The Court emphasized the need for evidence of running an educational institution, ownership, and permission for construction. It also highlighted the public interest in the acquired land and the petitioner's failure to comply with legal requirements.
Final Decision: The petition was dismissed, and the Court refused to interfere with the ongoing process, citing the lack of evidence and non-compliance with legal requirements.
ORDER :
1. This petition under Article 226 of the Constitution of India is filed with following prayers:-
(B) THIS HON’BLE COURT MAY BE PLEASED TO direct the Respondent Nos.1 and 2 to consider the request for regularization of the construction of the premises of the Petitioner-Waqf.
(C) Pending admission, hearing, and final disposal of the present application, this HON’BLE COURT MAY BE PLEASED TO stay, execution, and implementation of the impugned notice dated 29/12/2021 and the order dated 28/03/2022 passed by the Respondent No.2-Executive Engineer, in the interest of justice and equity.
(D) Pending admission, hearing, and final disposal of the present application, this HON’BLE COURT MAY BE PLEASED TO direct the Respondent Nos.1 and 2 to consider the request for regularization of the construction of the premises of the Petitioner-Waqf.”
2. It is a case where notice under Section 260(1)(a) of the Gujarat Provincial Municipal Corporations Act, 1949 (for short, “the GMPC Act”) dated 29.12.2021 and order dated 28.03.2022 under Section 260(2) of the GPMC Act by respondent No.2 is the subject matter of challenge.
2.1 It is the case of the petitioner that land bearing survey Nos.3936 and 2937 situated in the area of Sangrampura, Dist. Surat was originally owned by one Asiqhussain Abdulhusen and his five brothers and by way of oral gift deed, transferred right, title and share of all six brothers in favour of a registered Waqf represented by the petitioner as its “Muttwali”. It is the case of the petitioner that since such transfer, the petitioner-Waqf is running “Madrassa” providing education to Muslim students. Learned Advocate for the petitioner submitted that as the rights given to the Waqf was by way of oral gift, the same could not be entered into the revenue record.
2.2 It is the case of the petitioner that the activity was continuing for running educational institution (Madrassa), the petitioner-Waqf came to be registered on 11.11.2021 and under the registered-Waqf, educational activity has continued.
2.3 It is the case of the petitioner that City Survey Superintendent had issued notice dated 01.10.2021 under Section 61 of the Land Revenue Code for removal of construction on the ground that the petitioner-Waqf is unauthorized occupant of the Government land and has put up illegal construction. Against such notice, the petitioner filed a detailed reply dated 27.10.2021. By order dated 28.10.2021, City Survey Superintendent had declared the petitioner to be in unauthorized occupation and directed to vacate the premises on or before 03.11.2021. It appears that thereafter, by order dated 28.10.2021, the City Survey Superintendent also imposed penalty on the petitioner for unauthorized occupation. The petitioner was also issued notice dated 29.12.2021 on the ground of having illegal construction without any prior permission for development and had constructed ground and first floor.
2.4 Learned Advocate for the petitioner submitted that the petitioner had challenged notices issued by the authorities before the Waqf Tribunal by filing Waqf Suit No.23 of 2022 and prayed for interim injunction. The Waqf Tribunal ordered carrying out of Court Commissioner of the suit property and panchnama was also carried out. The Waqf Tribunal on 25.01.2022 passed order of granting status quo, which came to be extended from time to time. However, after filing of the reply by the respondent-authorities before the Waqf Tribunal, the order of status quo was not extended by the Waqf Tribunal. However, the Waqf Tribunal directed the petitioner to submit an application for fresh development permission or regularization along with necessary plans before 25.03.2022 and directed respondent Nos.1 and 2 to decide such application in accordance with law. Interim relief
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