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2021 Supreme(Raj) 127
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
INDRAJIT MAHANTY, GOVERDHAN BARDHAR, JJ.
Jindal Saw Limited – Appellant
Versus
State Of Rajasthan – Respondent
D.B. Civil Writ Petition No. 8848 of 2020
Decided on : 29-09-2021
Advocate Appeared:
For the Appellant : Mr. Manoj K. Singh, through V.C. with Mr. Ramit Mehta, Mr. Saurabh Maheshwari, Mr. Nilava Bandopadhyaya, Mr. Tarun Dudia, Mr. Yash Goyal, Mr. Sandeep Shah, AAG with Ms. Pratyushi Mehta & Mr. Abhimanyu Singh, Mr. Mukesh Rajpurohit, ASG through V.C. with Mr. Navneet Singh Birkh, Mr. Yogendra Singh Rajput, through V.C. & Mr. Usman Ghani, Mr. Anil Kumar Gaur, AAG with Mr. Salman Agha, Mr. Anupam Gopal Vyas, Mr. Bhushan Singh Charan Mr. Rajesh Pariha
Point of Law: Before grant of mining patta to the petitioner, an enquiry was conducted by the concerned Tehsildar for the purpose of identifying the khasra numbers in which mining was prohibited and in which the mining was permitted
Headnote:
Rajasthan Religious Building and Places Act, 1954 - Section 6(c) and 2 (I) - Waqf Act, 1995 - Sections 104A, 26, 3 (r) and 6 - Prohibition of sale/ gift, exchange, mortgage or transfer of waqf property - Mortgage or transfer of waqf property - Sale, gift, exchange, mortgage or transfer of property - Committee was constituted by this Court under the Chairmanship Controller General Indian Bureau of Mines for purpose of answering factual issues and its report - Expert Committee submitted its detailed report – Court Wakf Board, Committee and District Collector were impleaded as party respondents in writ petition. Later order - Petitioner-company was allotted a mining lease by Government of Rajasthan for an area measuring hectares at Bhilwara - Mining lease deed entitles petitioner to use said area of land in full fledged manner in optimal way for mining purpose without any hindrances - Alleged mosque in said at village prior to allotment of mining lease, a detailed khasra-wise report was sought from Tehsildar, Bhilwara, who provided a detailed Khasra-wise analysis of complete area falling within mining lease and according to which, in Khasra - permission was granted for carrying out mining activities - Tehsildar clearly identified khasra numbers in which mining was permitted or prohibited –
Finding of the Court:
Waqf of State of Rajasthan was duly appointed to conduct survey of Waqf Properties - Gazette Notification was published was notified Additional Affidavit filed by Waqf Board - Survey of disputed land was conducted in year 1963 - Alleged structure was recorded as Waqf Property by Waqf Department and as such - promulgated in year 1954 - Section 2 (I) of Act of 1954 defines "Waqf" means permanent dedication by a person professing Islam of any movable or immovable property for any purpose recognized by Muslim Law as pious - Grants for any purpose recognized by Muslim law as pious, religious or charitable - Property is dedicated for any purpose recognized by Muslim law as pious, religious or charitable and "wakif" means any person making such dedication - Dedication by any person professing Islam or otherwise - No details have been provided by Waqf Department as to who and how present alleged "Waqf Property" was dedicated - Revenue record reveals that Khasra at Village Pur, Bhilwara has always been Government land since 1923 - Dedication Waqf cannot be created - Survey report placed on record shows presence of alleged - Disputed structure exists on Khasra Mere inclusion of dilapidated structure in Notification issued by the Waqf Board does not create a valid waqf and the property cannot be said to vest with Waqf Board –
Result: Writ petition stands allowed
JUDGMENT :
1. By way of instant writ petition, the petitioner has prayed for the following reliefs:-
"A. Allow the writ petition;
B. Issue a Writ in the nature of Mandamus or any other appropriate Writ; Order or Direction to the Respondents not to interfere with the act of Petitioner in removal of structure; i.e., dilapidated platform/chabutarh at Tiranga Hills (Pahari) forming part of Khasra No. 6731 of Village Pur, Bhilwara, Rajasthan for mining purpose as said dilapidated structure is stumbling block in the mining process which has been awarded to the petitioner in terms of the Lease dated 08.12.2010 by Respondent No.1 to the Petitioner for entire area 1556.7817 hectares of land which includes said Khasra No. 6731 of Village-Pur, Bhilwara, Rajasthan;
C. Issue a Writ in the nature of Mandamus or any other appropriate Writ, Order or Direction to Respondent No.1 to provide police assistance to Respondent No.2, if required, in removal remove dilapidated platform/chabutarh at Tiranga Hills (Pahari) forming part of Khasra No.6731 of Village Pur, Bhilwara, Rajasthan;
D. Issue a Writ in the nature of Mandamus or any other appropriate Writ, Order thereby declaring that the Section 6(c) of the Rajasthan Religious Building and Places Act, 1954 is ultra vires to the Constitution of India;
E. Pass any other/further order or orders, as this Hon'ble court may deem fit and proper in the interest of justice."
2. It is pertinent to mention here that vide order dated 09.10.2020, an Expert Committee was constituted by this Court under the Chairmanship of Shri R.K. Sinha, Controller General (Retd.) of Indian Bureau of Mines for the purpose of answering the factual issues and to submit its report. The Expert Committee submitted its detailed report dated 10.01.2021, to which the State of Rajasthan raised number of objections. The petitioner also filed its reply to the said objections.
3. It is to be noted that vide order dated 12.08.2021 passed by this Court, the Wakf Board, Anjuman Committee and the District Collector Bhilwara were impleaded as party respondents in the writ petition. Later, vide order dated 03.09.2021, on the application submitted by Mohd. Nizam Khan, Mohd. Ayub and Mohd. Umar, who filed the FIR before the concerned police station alleging that the land on which the construction is existing is a Waqf property, they were also impleaded as party respondents.
4. Learned counsel appearing for the petitioner submitted that the petitioner-company was allotted a mining lease by the Government of Rajasthan on 10.12.2010 for an area measuring 1556.78 hectares at Bhilwara. The said allotment was made after following the due process of law and all necessary reports from the concerned Government Departments. The mining lease deed entitles the petitioner to use the said area of land in full fledged manner in optimal way for mining purpose without any hindrances. It was further submitted that the petitioner placed on record the revenue records for the year 1923, 1969 and 2012-15, which do not record the existences of any alleged mosque in the said Khasra No.6731 at village Pur, Bhilwara. Further, prior to the allotment of mining lease, a detailed khasra-wise report was sought from the Tehsildar, Bhilwara, who provided a detailed Khasra-wise analysis of the complete area falling within the mining lease and according to which, in Khasra No.6731, situated at village Pur, permission was granted for carrying out the mining activities. The Tehsildar clearly identified the khasra numbers in which mining was permitted or prohibited.
5. Learned counsel further submitted that pursuant to the directions of this Court, an Expert Committee was constituted to determine the following two factual issues:-
"(i) As to whether the structure existing within the mining lease area of the petitioner was a mosque or structure which can be removed for the purpose of carrying out lease hold activities within the said area.
(ii) The Committee shall also ascertain as to whether an
