JUDGMENT :

VIPIN SANGHI, J.

The petitioner has preferred the present writ petition, under Article 226 of the Constitution of India, to seek quashing of the letter dated 08.06.2023, issued by respondent No. 5, i.e., the Assistant Engineer, Northern Division, Ganga Nahar, Roorkee, District Haridwar, whereby respondent No. 5 gave notice to the manager/Maulvi/Sewadar of Gafuria Masjid, Malakhpur Chungi, Roorkee, to remove the religious structure, called Masjid, constructed on public land, which is causing obstruction on the public road/public place, and causing difficulty to the public at large. The petitioner also seeks a mandamus to the respondent authorities not to remove the construction known as “Gafuria Masjid”, bearing present Municipal No. 73 (Old Municipal No. 32/2), situated at Malakhpur Chungi, Civil Lines, Roorkee, District Haridwar.

2) The present petition has been filed by Fayyaz Ali, who claims to be the Mutawalli of Gafuria Masjid. It is claimed by the petitioner that the Gafuria Masjid has been in existence since much prior to independence in 1947. It is claimed that the mosque was constructed by the local people for the general public, and the land for the same was given by the then Zamindars. The petitioner claims that the Municipality has been levying house tax, which has been paid from, time to time. The petitioner has placed on record the certified copies of the house tax assessment lists of Mohalla Civil Line, Nagar Nigam, Roorkee from 01.04.1957 onwards, to show that a mosque in question has been recorded in the Municipal records from 1957 onwards. At this stage itself, we may observe that the assessment lists placed on record themselves present a confusing and unclear picture, inasmuch as, in different lists, the Municipal address of the masjid differs. The Municipal numbers of the masjid recorded in the assessment lists placed on record, are the following:

Pertinently, all the assessment lists show that the masjid is shown to be existing on land belonging to the Irrigation Department. Thus, there is no clarity on the issue. It remains in doubt – as to whether, the record relied upon by the petitioner, even pertains to the masjid in question, or not. Pertinently, none of them record the name of the masjid as Gafuria Masjid.

3) The further case of the petitioner is that the masjid in question is registered with the Waqf Board. The petitioner has placed on record notifications with regard to registered Auqaf. However, on a perusal of the said entries, we do not find any entry in the name of Gafuria Masjid.

4) The further case of the petitioner is that the mosque in question has not been constructed on a street, or in any public park, or in other public place. It is, therefore, claimed that the said mosque does not fall within the ambit of the order passed by the Supreme Court on 29.09.2009, in Special Leave to Appeal (Civil) No. 8519 of 2006, Union of India Vs State of Gujarat and others.

5) The petitioner