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HIGH COURT OF ALLAHABAD
Hari Swarup, K.S.Verma
MOHAMMAD ALI KHAN
Versus
SPECIAL LAND ACQUISITION OFFICER LUCKNOW NAGAR MAHAPALIKA LUCKNOW AND OTHERS
Decided On : 01 April 1978
Writ Petn. No. 275 of 1972
LAND ACQUISITION - CONSTITUTIONALITY - RELIGIOUS PROPERTY - MOSQUE AND GRAVEYARD - ACQUISITION UNDER LAND ACQUISITION ACT AND NAGAR MAHAPALIKA ADHINIYAM - VALIDITY - ARTICLES 25 AND 26 OF THE CONSTITUTION - INTERPRETATION.
Fact of the Case:
The petitioner challenged the validity of the Aliganj Street and City Expansion Scheme, an Improvement Scheme framed under the Nagar Mahapalika Adhiniyam by the Nagar Mahapalika, Lucknow and subsequently adopted by the Lucknow Development Authority constituted under U. P. Urban Planning and Development Act, 1973. The petitioner challenged the validity of acquisition on various grounds, including the acquisition of land on which a mosque and graveyard stood, contending that such acquisition violated Articles 25 and 26 of the Constitution.
Finding of the Court:
The court held that the acquisition of land for a public purpose, including land covered by a mosque or a grave, is not unconstitutional and does not violate Articles 25 and 26 of the Constitution. The court interpreted Articles 25 and 26 to hold that the freedom of religion guaranteed under Article 25 is a personal right that does not extend to the preservation of specific places of worship or graveyards. The court also held that the right to establish and maintain institutions for religious purposes under Article 26 does not make such institutions immune from acquisition under the Land Acquisition Act.
Issues: 1. Whether the acquisition of land on which a mosque and graveyard stand is unconstitutional and violates Articles 25 and 26 of the Constitution? 2. Whether the freedom of religion guaranteed under Article 25 extends to the preservation of specific places of worship or graveyards? 3. Whether the right to establish and maintain institutions for religious purposes under Article 26 makes such institutions immune from acquisition under the Land Acquisition Act?
Ratio Decidendi: 1. The court held that the acquisition of land for a public purpose, including land covered by a mosque or a grave, is not unconstitutional and does not violate Articles 25 and 26 of the Constitution. The court interpreted Articles 25 and 26 to hold that the freedom of religion guaranteed under Article 25 is a personal right that does not extend to the preservation of specific places of worship or graveyards. The court also held that the right to establish and maintain institutions for religious purposes under Article 26 does not make such institutions immune from acquisition under the Land Acquisition Act. 2. The court held that the freedom of religion guaranteed under Article 25 is a personal right that does not extend to the preservation of specific places of worship or graveyards. The court reasoned that the right to practice religion freely does not mean that no place can be acquired for a public purpose, even if that place is used for religious purposes. 3. The court held that the right to establish and maintain institutions for religious purposes under Article 26 does not make such institutions immune from acquisition under the Land Acquisition Act. The court reasoned that the right to own and acquire property for religious purposes does not take away the right of the State to compulsorily acquire property in accordance with the provisions of Article 31(2).
Final Decision: The petition challenging the validity of the acquisition of land for the Aliganj Street and City Expansion Scheme was dismissed.
2. The petitioner has raised two additional grounds in this case. The first ground is that the petitioner was not given an opportunity of hearing as contemplated by Ss. 357/358 of the U. P. Nagar Mahapalika, Adhiniyam which are equivalent to S. 5-A of the Land Acquisition Act. The second ground urged is that certain portions of the land could not be the subject-matter of acquisition as they comprised of Waqf property on which a mosque and certain graves stood. The petitioner has filed an affidavit to the effect that he goes to the mosque for offering prayers and some of the graves hold the dead bodies of his ancestors. We will take the second point first.
3. The learned counsel has urged that the acquisition of land on which the mosque is situated or where the graves exist cannot be the subject-matter of acquisition in view of Arts. 25 and 26 of the Constitution. The contention is that the provisions of the Land Acquisition Act and the U. P. Nagar Mahapalika Adhiniyam which empower the acquisition of all land without making a distinction between the land covered by a mosque or a grave is unconstitutional as offending Arts. 25 and 26 of the Constitution and is, accordingly, void under Art. 13 of the Constitution. He has also urged that a harmonious interpretation be placed on the Land Acquisition Act and it should be held that the Land Acquisition Act does not deal with the acquisition of such land on which a mosque or a grave may stand.
4. We are unable to give to the provisions of the Land Acquistion Act the interpretation the learned counsel has sought. The expression land has been defined in S. 3 (a) of the Land Acquisition Act as follows:
" The expression " land" includes benefits to arise out of land and things attached to the earth or permanetly fastened to anything attached to the earth. "
Sec. 6 permits the acquisition of any land as defined in S. 3 of the Act. It is thus not possible for us to interpret the Land Acquisition Act in a manner so as to exclude land covered by a mosque or a grave. We are examining the provisions of the Land Acquisition Act as acquisition under the U. P. Nagar Mahapalika Adhiniyam is made in accordance with the provisions of the Land Acquisition Act itself.
5. The learned counsel for the petitioner relied on certain instruction contained in para. 411 (2) of Chapter 14 in Revenue Manual, Volume I. The instructions contained therein are only recommendatory in nature and require that as far as possible such constructions be left out of acquisition as may offend religious feelings. These directions cannot be sufficient to nullify or invalidate an acquisition made under the Land Acquisition Act or under the Nagar Mahapalika Adhiniyam.
6. The wider question that arises in the case is about the constitutional validity of the Land Acquisition Act or the provisions of the U. P. Nagar Mahapalika Adhiniyam dealing with the acquisition, in so far as they permit the acquisition of land for a public purpose without excluding the lands which may be subject-matter of Waqfs and which may b
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