IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (MS) No. 2258 of 2020 Waqf Allah Tala Dargah Hazrat Masum Sah Miyan ...Petitioner Vs.

National Highway Authority of India and Others ...Respondents Presence:

1. Mr. T.A. Khan, learned senior counsel assisted by Mr. Mohd.

Shafy, learned counsel for the petitioner.

2. Mr. Naresh Pant, learned counsel for NHAI through V.C.

3. Mr. Rajeev Singh Bisht, learned Additional C.S.C. for the State.

Hon’ble Rakesh Thapliyal, J. (Oral)

Yesterday the matter was listed and heard at length on an application moved by the petitioner for shifting of the Dargah (mentioned as Mazaar in the revenue records) and for that purposes on the previous date the petitioner was directed to furnish the details of two persons having faith on their religion and subsequently Mr. T.A. Khan, learned senior advocate proposed the name of two persons and the District Administration was directed to verify their credentials and place the report in the sealed envelope.

2. In addition to this, the petitioner by way of an affidavit also propose the house of Mutawalli for the purposes of shifting of the Dargah (Mazaar) on which he was directed to produce title document but he failed to produce any title document except tax receipt. Consequently, the District Administration was directed to submit report regarding house of “Mutawalli” and in compliance thereof report has been submitted in sealed envelope on purusal of which it reveals that “Mutawalli” himself is unauthorized occupant and constructed house in Nazul land, which is a Government land.

3. For the purposes of shifting of the material of Dargah raised unauthorizedly in a Nazul land the Waqf Board was also given an opportunity to propose any land recorded in Waqf register, but learned counsel for the Waqf Board Mr. Mohd. Shafy submits that there is no land with the Waqf Board for this purposes.

4. Mr. T.A. Khan, submits that let the State Government be directed to provide land for shifting, however, this court is of the view that Government land are not meant for this purposes.

5. Mr. Naresh Pant, learned counsel for NHAI submits that the land where the Dargah (Mazaar) was unauthorizedly constructed already acquired for road widening purposes and the compensation has already determined and as such authorities may be permitted to operate the National Highway.

6. The officials of the administrative department of district Udham Singh Nagar also joined the proceeding through V.C. and they apprise to this court that this entire area was acquired in public interest for the purposes of road widening and the land where the Dargah was built illegally is a Government land and removal of unauthorized construction was justified as part of a larger project to widen the highway.

7. Yesterday, this court observed in the order on the submissions advanced by the learned counsel for the NHAI that as per the provisions of N.H. Act the compensation was determined, but the Mutawalli refused to accept the compensation and not only this neither any acquisition proceeding initiated in the year 2013 was challenged nor the notices were responded by the Mutawalli. Such a conduct of Mutawalli is appears to be nothing but in order to occupy the Government land unauthorizedly. Surprisingly, in this case, the house where the Mutawalli resides is also a Nazul land and the entry has been made in the Tax Assessment Register maintained by the Nagar Nigam with regard to this Mutawalli is as a unauthorized occupant.

8. Yesterday, this court was of the view that the debris of Mazar be collected in the presence of the two persons whose name has been proposed by the petitioner in the presence of Mutawalli, but Mr.

T.A. Khan, learned senior counsel today submits that until and unless the Government provides an alternative land these two persons with the Mutawalli will not participate in removing the debris of Mazar in the presence of the district administration, in such an eventuality, to maintain the law and or