KATARIYA USMANGANI HAJIBHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The present Special Civil Application has been filed praying for the following reliefs:-

(2.) The brief facts of the present case are that, the petitioner is a trustee of the Hazrat Jalal Shah Pir Dargah Trust ["Trust" for short]. That the said Dargah/Mazar is constructed on the grave of Sufi Saint Hazrat Jalal Shah Pir which is integral part of the kabristan of muslims of Anandpar Village and some of surrounding villagers. That the Dargah/Mazar on the grave of the said Sufi Saint was constructed and renovated from time to time in order to preserve it. The said Dargah/Mazar has lots of devotees and annual Urs is also being conducted and celebrated there. That the said Dargah/Mazar is registered as Wakf Estate bearing Waqf ID GJ031348 and Aukaf register Sr. No.031148 which is registered on 26/3/1963. The said Dargah/Mazar is in existence since ancient time and has historical significance. That the said Dargah/Mazar is situated on the Rajkot-Ahmedabad National Highway No.27. The said Dargah/Mazar is clearly separated by the service road as well as is 15 feet away from the main highway. That due to construction of National Highway and other surrounding developments, the Dargah/Mazar and surrounding area became uneven creating a descending flow from the highway towards the Dargah/Mazar and due to such condition, during monsoon, the water flows from the road and enters in the Dargah/Mazar. Therefore, the Trust decided to renovate the Dargah/Mazar and to construct the proper flooring and structure so that the grave of the Sufi Saint can be prevented from the damage. For the said purpose, necessary permission was sought from Shri Anandpar (Navagam) Gram Panchayat and the permission came to be granted by the said Gram Panchayat vide letter dtd. 3/4/2024. That the construction is about to get completed and during such process, no hindrance or disturbance has been caused by any person and all the necessary safety precautions have been taken to ensure that there no disturbance to the traffic of the highway as might be caused. That the notice dtd. 9/1/2025 came to be issued by the respondent No.2 Dy. Executive Engineer. Thereafter, subsequently, the respondent No.2 Dy. Executive Engineer issued a subsequent notice dtd. 18/1/2025 to remove the structure under construction. That thereafter the petitioner made a detailed representation on 24/1/2025 which came to be decided by the order dtd. 27/1/2025. Aggrieved, the petitioner has filed the present Special Civil Application.

(3.) Learned counsel for the petitioner submitted that the Dargah/Mazar is an ancient structure. The said Dargah/Mazar is registered as Wakf Estate bearing Waqf ID GJ031348 and Aukaf register Sr. No.031148 on 26/3/1963. The said Dargah/Mazar is also registered under the Public Trust Act having serial No.B-148. The said Dargah/Mazar is also allotted PAN No.AADTH0545E by the Income Tax Department. Being the shrine of Sufi Saint Hazrat Jalal Shah Pir Valiullah, it has its own significance and has a history of more than 100 years. He submits that the said Dargah/Mazar is situated near the National Highway No.27, but it is at a distance of several feet from the boundary of the last lane of the said Highway and is separated by service road as well as open space of more than 15 feet. He submits that due to the construction of the National Highway and other surrounding developments, the surface of the said Dargah/Mazar and surrounding area became uneven and the surface of the said Dargah/Mazar became a descending slop from the road towards the said Dargah/Mazar, due to which during monsoon the water used to flow from the road and enter in the graveyard and said Dargah/Mazar. Therefore, the petitioner Trust decided to renovate the said Dargah/Mazar again and to construct proper flooring and create a proper structure of said Dargah/Mazar so that the grave of the Sufi Saint in the graveyard or Kabristan can be prevented from damage due to flow of water during monsoon. Accordingly, necessary permission was also sought from the Anandpar (Navagam) Gram Panchayat. The said Gram Panchayat by letter dtd. 3/4/2025 has granted permission for the construction of the new structure of the said Dargah/Mazar. The said Dargah/Mazar is situated in the muslim graveyard where there are several old graves dating from 1923 onwards which have also been inspected by the Archaeological Survey of India. He submits that for the last more than 40 years, necessary applications have been made by the trustees and social workers to designate the said land as graveyard of muslims. Various inter departmental communications between the authorities have also taken place to designate the said land as graveyard and the same are pending consideration. That the revenue authorities have also drawn various Panchnamas in the year 1984, 2004 and 2006 for the purpose of fencing, cordoning and to record the status of the graveyard situated there. He submits that in the year 2005, the Archaeological Department inspected the ancient grave besides the said Dargah/Mazar on which year 1928, 1930, 1946, 1951, etc. were written. He submits that the respondent No.5 Mamlatdar has submitted a report to the respondent No.2 Dy. Executive Engineer that the nature of the land is Government waste land. Despite the communications of the revenue authorities that the land of the graveyard can be considered as waste land, learned advocate for the petitioner submits that various Panchnamas and records establish that there is a graveyard and the said Dargah/Mazar is at the disputed place since ancient time. He further submits that the said Dargah/Mazar is even recognized by the Panchayat, Taluka and District authorities since decades and even the said Dargah/Mazar is also taxed by the Municipal Authorities and permission is given to hold Urs by the office of the District Collector from time to time. The said Dargah/Mazar has electrical connection and pays its electricity bills and has a telephone connection too. He further submits that the said Dargah/Mazar is being targeted and notice of demolition has been issued to the Trust on the basis of the communication dtd. 3/1/2025 written by the respondent No.4 Collector to the respondent Nos. 2 and 3. He submits that issuance of such notice is discriminatory as there are temples also adjoining to the main highway or the road. He submits that the ancient Dargah/Mazar is otherwise legal and integral part of the graveyard and is well recognized by all the concerned authorities. That the procedure for designating the land as graveyard has been going on for more than 40 years, such action or demolition is malafide, discriminatory and arbitrary. He submits that the present Dargah/Mazar also does not feature in the official list of 191 illegal religious structures to be removed as submitted the State Government in a pending Public Interest Litigation in the High Court. He submits that there is a temple at serial No.142 in the list of illegal structures submitted to the Hon'ble Court which is situated about 1 km. away on the same Highway, yet no action has been initiated against it. He submits that the selective targeting of the said Dargah/Mazar is without any substantive cause of action and and reflects biased approach. He submits that the issuance of notice amounts to unreasonable classification and renders the action of the respondent authorities unsustainable in law. He submits that the notice/order of demolition is in contravention of the provisions of law as it is Waqf property registered with the Waqf Board and the land on which the said Dargah/Mazar is situated does not belong to the Highway Authority. He submits that during the construction of the service road and several bridges, the Trust had handed over possession of substantial portion of the land being used as graveyard in public interest and still the authorities are targeting the said Dargah/Mazar and the construction being put thereon for demolition. He submits that subsequent to the issuance of such notice, 257 individuals from muslim community have signed the representation confirming that their relatives have been buried in the graveyard where the said Dargah/Mazar is situated and there is overwhelming evidence of continued and long standing graves on the site as a muslim kabristan. He, therefore, submits that the impugned notice and the order of removal / demolition of the said Dargah/Mazar is bad in law. He, therefore, submits that the present Special Civil Application be allowed.