IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO.9332 OF 1995 . Date of decision: April 20, 1998. GULAM KADAR AHMADBHAI MEMON & ORS.... Petitioners Versus SURAT MUNICIPAL CORPORATION. ......... Respondents. For approval and signatures: The Hon'ble Mr. JUSTICE R.A.MEHTA. The Hon'ble MR. JUSTICE M.S.SHAH 1. Whether Reporters of Local Papers may be allowed to see the judgment ? 2. To be referred to the Reporter or not? 3. Whether their Lordships wish to see the fair copy of judgment ? 4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder? 5. Whether it is to be circulated to the Civil Judge ? Appearance: MR HM MEHTA SR. ADVOCATE WITH MR.KETAN A DAVE,ADVOCATE for Petitioners. MR GN DESAI SR.ADVOCATE WITH MR.PRASHANT G DESAI, ADVOCATE for respondents nos. 1 and 2. MR MB FAROOQUI,ADVOCATE for Respondent Nos. 3 and 4 CORAM : R.A. MEHTA & M.S.SHAH JJ. April 20, 1998. JUDGMENT (C.A.V.) (PER M.S.SHAH J.) This public interest petition under Article 226 of the Constitution challenges the constitutional validity of provisions of Section 212 of the Bombay Provincial Municipal Corporations Act, 1949 (hereinafter referred to as the BPMC Act or 'the Act' ) on the touch stone of Articles 25 and 26 of the Constitution of India and also challenges the orders dated 7th October 1995 (Annexures C and D to the petition) requiring the trustees of the Trusts managing Mohammad Arif Minara Masjid and Golwali alias Halkara Masjid in Surat to demolish and remove a part of the aforesaid two mosques for clearing the road line as set under the provisions of section 212 of the Act. 2. Initially the petition was mainly filed against Surat Municipal Corporation (hereinafter referred to as the Corporation) . Subsequently the Trustees of the aforesaid two Trusts managing the aforesaid mosques were added as respondents in order to decide the controversy involved in this petition completely and effectually. Notice was issued by this Court and ad interim relief was granted directing the respondents to maintain status quo. In response to the notice affidavit-in-reply was filed on behalf of the respondent-Corporation. In view of the amendment of the petition the respondents filed further affidavit-in-reply. Thereafter rejoinder Affidavits by the petitioner and surrejoinder affidavit on behalf of the respondents have been filed. With the consent of the learned counsel for all the parties, the petition was heard for final disposal. 3. The facts leading to the filing of the present petition, briefly stated, are as under: 3.1. Mohammad Arif Minara Masjid (popularly known and hereinafter referred to as the Minarawali Masjid ) and Golwali alias Halkara Masjid (popularly known and hereinafter referred to as the Golwali Masjid) are situate on the Bhagal main road in the city of Surat. Minarawali Masjid is managed by Mohammad Arif Minara Masjid Trust a wakf which is registered as a Public Trust under the Bombay Public Trusts Act 1950. According to the petitioners, the said mosque was existing even in the year 1867 when the Collector, Surat issued a Sanad in respect of the mosque to the then mutawali thereof. Golwali masjid is managed by another wakf Golwali alias Halkara Masjid Trust, which is also registered as a public trust under the aforesaid Act of 1950. 3.2. Under the provisions of the Gujarat Town Planning Act, 1976 (hereinafter referred to as the TP Act), the Surat Urban Development Authority (SUDA) has been constituted for preparing the development plans for Surat Urban Area. The SUDA prepared a development plan for the area including the Bhagal main road and certain other areas of Surat city. The Corporation had issued a public notice on 9th November 1988 inviting objections against the draft development plan which also included the provision for widening of Bhagal main road on which the aforesaid two mosques abut. After considering the objections, the Standing Committee of the Municipal Corporation passed a Resolution on 20th May 1989 under Section 210 of the BPMC Act prescribing a fresh road line in substitution of the existing road line. The said fresh road line is now called regular line of the street. As per the said sanctioned development plan in place of the existing 40' wide road line,60' wide regular line of the street was provided on the aforesaid site in question which is on a junction of five roads. 3.3. Respondent no.2 i.e. the Director of Planning, of the Corporation issued notices dated 7th September 1995 under the provisions of sub-section (1A) of Section 212 of the BPMC Act calling upon the trustees of the aforesaid two mosques to demolish and remove a portion of the respective mosques so as to fall in line with the sanctioned regular road line; as per the plan sanctioned in the year 1989. The trustees of the aforesaid two wakfs lodged their objections including the objections to the effect that the properties in question being religious properties should be excluded from road line and that there was no need to acquire the said properties and further that there was no need to widen the road. The Standing Committee of the Corporation passed Resolution dated 5th October 1995 rejecting the said objections and thereupon by orders dated 7th October 1995 (Annexures C and D to the petition), respondent no.2 called upon the trustees of the said two mosques to remove the demarcated portion of the aforesaid two mosques. 3.4. Both the above orders dated 7th October 1995 are challenged in the present petition. 4. Mr.H.M.Mehta, learned Counsel for the petitioners raised the following contentions at the hearing. (1) The provisions of Section 212 of the BPMC Act are violative of Articles 25 and 26 of the Constitution in so far as they purport to be applicable to the places of religious worship; (2) The impugned orders are violative of the provisions of the Places of Worship (Special Provisions) Act 1991; (3). The impugned orders are also violative of the Resolution dated 3rd May 1951 which was passed by the Standing Committee of Corporation specifically providing that places of worship like temples, mosques , etc. shall be excluded from road line; (4). The Corporation has failed to follow the required procedure before passing the order under Section 212 of the BPMC Act. (5). The impugned orders are also discriminatory in as much as the Corporation has accorded favorable consideration to Hindu religious places in the context of street alignment but has failed to adopt a similar constructive and beneficial approach in respect of the aforesaid mosques. 5. In reply to the above contentions, Mr.G.N. Desai,learned Counsel appearing for the respondent Municipal Corporation had submitted as under: (a). The constitutional validity of the provisions of section 212 of the BPMC Act has already been upheld by the Hon'ble Supreme Court in the case of the Municipal Corporation of the City of Ahmedabad and Ors. Vs. The State of Gujarat and anr., AIR 1972 SC 1730 and by a Division Bench of this Court in Special Civil Application No. 1454 of 1965 and other cognate matters decided on December 13, 1972. (b). The provisions of the Places of Worship (Special Provisions ) Act, 1991 are not applicable in the instant case. (c). The resolution dated 3rd May 1951 wazs a one time resolution passed by the then Municipality dealing with the traffic situation then prevailing. (d). The road is being widened from 40' to 60'as per the sanctioned development plan which was prepared as per the provisions of the Gujarat Town Planning and Urban Development Act, 1976 and also as per the road line sanctioned under section 212 of the BPMC Act.The development plan was sanctioned as far back as in 1986. The road line was sanctioned in the year 1989. The present petition filed in November 1995 therefore, suffers from gross delay,laches and acquience. (e). Since the road is being widened as per the aforesaid sanctioned road line, the petitioners have no right to challenge the impugned orders dated 7th October 1995 as the same are merely consequential orders on the basis of the development plan sanctioned in the year 1986 and the road line sanctioned in the year 1989. The petitioners have not challenged either the development plan or the decision taken in the year 1989 for the aforesaid street alignment. (f). The impugned orders were passed after following the procedure prescribed by law including consideration of objections against the proposed road line in 1989 under section 210 of the Act and after following the procedure under section 212 of the Act in the Year 1995. (g). The two mosques are situate on the Bhagal main road which is a highly congested area. Parts of the two mosques and surrounding areas like shops belonging to and let out by respondents Nos. 3 and 4 were situate on traffic bottle necks on a junction of five busy roads. (h). The allegations of discrimination are baseless as many mosques and Dargahs were given relaxation at the time of road alignment but since these two mosques are situate on a bottle neck on the junction of five roads, some portions of the mosques are required to be removed in public interest. Many of the temples are being removed from the main road; for instance, on Una Pani Road there are five temples which are coming within the road line and the Corporation is considering to remove them. If the religious places are on roads not having heavy traffic, different consideration would arise. However, in the instant case in view of the increase in the population and in the traffic, it is necessary to widen the road to solve the traffic problem in public interest. 6. We will first examine contention nos.2 to 4 urged on behalf of the petitioners because if any one of them is upheld, it may not be necessary to examine other wider questions. We will consider Mr.Desai's preliminary contentions (d) and (e) alongwith the first and fifth contentions of Mr.Mehta. CONTENTION NO. 2. 7. As far as the contention of Mr.Mehta based on the provisions of the Places of Worship (Special Provisions ) Act, 1991 is concerned it is not available to the petitioners because what the aforesaid Act prohibits is conversion of any place of worship of any religious denomination into a place of worship of another religious denomination. It does not prohibit the State from acquiring any place of worship or any part thereof for a public purpose such as acquisition of property for widening the road. Section 3 of the said Act reads as under: "3. Bar of conversion of places of worship. No person shall convert any place of worship of any religious denomination or any section thereof into a place of worship of a different section of the same religious denomination or of a different religious denomination or any section thereof." In the instant case admittedly, the acquisition of a part of the concerned mosques is not for purpose of any such conversion but is only for the purpose of widening the road. CONTENTION NO. 3. 8. As regards the contention of the petitioners that the impugned orders are violative of the Resolution dated May 3, 1951 of Surat Municipal Corporation, it is required to be noted that the said resolution was passed when Surat had a municipality under the Municipal Boroughs Act. Thereafter the Surat Municipal Corporation was established under the BPMC Act. A perusal of the said Resolution of 1951 shows that it was not meant to be an all time prohibition on acquisition of religious places but it was meant to be one time resolution passed in the context of the road alignment which was being sanctioned on that particular occasion. This reading of the Resolution is justified by the language of the resolution which reads as under: " Having considered the Standing Committee Resolution no.27 of 3.5.1951, this Board resolves to modify its resolution No.19 of and resolves that all the alignments as proposed by the Standing Committee be passed subject to the condition that alignment lines should be excluded from temples, mosques and other religious places which are used for prayer or worship. " (emphasis supplied ) It may also be noted at this stage that the increase in the number of vehicles in Surat to about 4 lakhs ( Times of India Ahmedabad Edition dated 5-4-1998) would also indicate that the situation in 1998 or for that matter even in 1995 is quite different from that prevailing in 1951. CONTENTION NO. 4. 9. As far as the contention that the respondent Corporation has not followed the procedure under the provisions of the BPMC Act is concerned, in our view the said contention deserves to be rejected. The Standing Committee of the Corporation had passed resolution on 20th May 1989 after following the procedure prescribed under section 210 of the BPMC Act. A public notice was issued on 9th November 1988 inviting objections against the proposed road line and it was after considering the objections that the Standing Committee had taken the decision on 20th May 1989. Similarly the impugned decision under sec. 212 of the BPMC Act has been taken after considering the objections pursuant to the notices dated 7th September 1995. The procedure for inviting objections was already followed by the State Government under the T.P. Act before sanctioning the development plan and thereafter by the Surat Municipal Corporation under the provisions of Sections 210 and 212 of the Act. It, therefore,cannot be said that the procedure prescribed under the provisions of the relevant Statutes was not followed before the decision was taken to prescribe the road line in question so as to widen it from 40' to 60'. CONTENTION NO.1: 10. As far as the first contention regarding the vires of the provisions of section 212 of the BPMC Act is concerned, it is required to be noted that the constitutional validity of the said provisions was upheld by the Hon'ble Supreme Court in the case of Ahmedabad Municipal Corporation AIR 1972 SC 1730 (supra) and in the decision of a Division Bench of this Court rendered on December 13, 1972 in Special Civil Application No. 1454 of 1965. Mr.Mehta, however, submitted that both the aforesaid decisions were in the context of challenge to the provisions of Section 212 of the BPMC Act in the context of Articles 14, 19 and 31 of the Constitution and that the challenge centered round the controversy as to the right of the State to acquire private property and the right of the citizens to claim compensation but neither of the two decisions was concerned with the challenge on the touch stone of Articles 25 and 26 of the Constitution. Mr.Mehta contended that the protection under Articles 25 and 26 of the Constitution extends to a religious practice at a place of worship which forms an essential and integral part of the freedom of religion guaranteed by the aforesaid constitutional provisions. 11. Mr.Mehta pointed out that the impugned orders require demolition of, inter alia, a part of the prayer hall in each of the above two mosques. In order to explain and emphasize the importance of prayer hall, Mr.Mehta relied on a Manual of "Hadith" and praticularly heavily relied on the following passage from the commentary in Chapter VII of the said Manual: " The prayer service of Islam is essentially a congregational service and has besides the development of the inner self of man, through communion with God, other ends as well in view, which show what a unique force the Islamic prayer is in the unification of the human race. In the first place, this gathering of all people living in the same vicinity five times daily in the mosque, is a great help to the establishment of healthy social relations, the circle becoming wider in the Friday service, and still more extensive in the Id gatherings. But the jama a not only promotes social relations; what is far more important it levels down social differences. In the congregational prayer all Muslims stand shoulder to shoulder before their Maker, the king along with his poorest subject, the rich arrayed in costly robes with the beggar clad in rags, the white man along with his black brother. Nay, the king or the rich man standing in a back row is required to lay his head, when prostrating himself before God, at the feet of a slave or a beggar standing in the front row. There could be no greater levelling influence in the world. In fact, congregational prayers are meant, among other things, to carry into practice the theoretical lessons of equality and fraternity for which Islam stands and however forcibly Ismal may have preached in words the equality of man and the fraternity of the community of Islam, all this would have ended in mere talk, had it not been translated into every day life through the institution of five daily congregational prayers. The stress laid by the Holy Quran on jama a is evident not only from the express command contained in v.1 : the very word used in it for the observance of prayers is evident that congregation is of the essence of prayer..." 12. Mr. Mehta then relied on the followinbg observations of the Hon'ble Supreme Court in the case of Mohd. S.Labbain Vs. Mohd. Hamif AIR 1976 SC 1569: " It is well known that on special occasions like Fridays. Id, Ide-Milad and other auspicious the entire Muslim Community flock to the mosque for the purpose of offering prayers, because offering of prayers on such days is, according to the Islamic tenets, extremely auspicious and highly efficacious. It is also established from the evidence that the constructionsreferred to above had been made for the purpose of the mosque. Before a Mussalman offers his prayers he has first to wash his hands and feet in the prescribed manner and for this purpose arrangements are made in every mosque and Pallivasal is no exception. Accordingly a tank or Hauz where water was pumped in was meant for the purpose of Wazoo i.e. for washing hands and feet which is a prerequisite for offering the prayers. Similarly, as a large number of Muslims assembled on special occasions as mentioned above, the entire space including the mosque, the Mandapam, and the corridor was used for the purpose of offering prayers. Thus, these constructions were used for religious purposes incidental to the offering of prayers and have become accretions to the mosque so as to constitute one single entity. Similarly, the mats are meant for the Mohomedans to be used at the time of offering prayers. Lastly the loud speaker is used for reciting Azan and dcelivering Khutbas i.e. religious sermons. Thus, all the adjuncts of the mosque are meant for purely religious purposes connected with the offering of prayers in the mosque." 13. It was submitted on behalf of the petitioners that if the road line is enforced by the respondent Corporation, as intended by them, a portion of the prayer hall (Jamat khana) will be required to be demolished in the Minarawali Masjid as well as in the Golwali masjid without any corresponding substantial benefit from the point of view of solving the traffic problem. Mr.Mehta submitted that about 41 shops admeasuring in all about 132 sq.mtrs around the two mosques, belonging to Respondents nos. 3 & 4 wakfs have already been demolished and therefore, the traffic problem has become much less acute and consequently if the prayer halls are kept in tact, no inconvenience or hardship will result to the public at large making use of the Bhagal main road. 14. It was also submitted on behalf of the petitioners that Minarawali masjid has a minaret which has its own significance as the said minaret is being used for giving call for prayers and also for spotting the moon on the eve of important festival days and it was therefore, submitted that the said minaret should also be as a part of the mosque and kept in tact. 15. Mr.Mehta submited that if the provisions of Section 212 of the Act are so interpreted as to empower the Corporation to acquire a place of religious worship, the same would be violative of the fundamental rights of the petitioners and other muslims in Surat under Articles 25 and 26 of the Constitution. In the alternative Mr.Mehta submitted that even if the provisions of Section 212 are held to be constitutional, the impugned orders must be held to be vitiated by the infirmity of breach of the provisions of Articles 25 and 26. In this connection Mr. Mehta invited our attention to the decision of the Hon'ble Supreme Court in the case of Dr.M.Ismail Faruqui Vs. Union of India & Ors(Ayodhya case). AIR 1995 SC 605, heavily relying on the following observations in paragraph 85 of the said judgment: ".... Obviously, the acquisition of any religious place is to be made only in unusual and extraordinary situations for a larger national purpose keeping in view that such acquisition should not result in extinction of the right to practice the religion, if the significance of that place be such..." (emphasis supplied by Mr.Mehta ) Mr.Mehta submitted that there was no unusual and extraordinary situation in the instant case which would require demolition of the prayer hall and the minaret in the Minarawali Masjid or the prayer hall in the Golwali Masjid and that the requirement for widening a road for meeting with the traffic question cannot be said to be such unusual and extra ordinary situation as to justify demolition of any part of a place of religious worship. 16. On the other hand, Mr.Desai learned Counsel for the respondents contended that the ratio of the aforesaid judgment in the case of M.Ismail Faruqui (supra ) is contained in the following principle laid down by the Hon'ble Supreme Court (para 85 ): "85. The correct position may be summarized thus: Under the Mahomedan Law applicable in India, title to a mosque can be lost by adverse possession (See Mulla's Principles of Mahomedan Law, 19th Edn. by M.Hidayatullah - S.217 and AIR 1940 PC 116 ). If that is the position in law, there can be no reason to hold that a mosque has a unique or special status, higher than that of the places of worship of other religions in secular India to make it immune from acquisition by exercise of the sovereign or prerogative power of the State. A mosque is not an essential part of the practice of the religion of Islam and Namaz (prayer ) by Muslims can be offered anywhere, even in open. Accordingly, its acquisition is not prohibited by the provisions in the Constitution of India. Irrespective of the status of a mosque in an Islamic country for the purpose of immunity from acquisition by the State in exercise of the sovereign power, its status and immunity from acquisition in the secular ethos of India under the Constitution is the same and equal to that of the places of worship of the other religions, namely, church, temple etc. It is neither more nor less than that of the places of worship of the other religions. Obviously, the acquisition of any religious place is to be made only in unusual and extraordinary situations for a larger national purpose keeping in view that such acquisition should not result in extinction of the right to practice the religion, if the significance of that place be such. Subject to this condition, the power of acquisition is available for a mosque like any other place of worship of any religion. The right to worship is not at any and every place, so long as it can be practised effectively, unless the right to worship at a particular place is itself an integral part of that right." (emphasis supplied by Mr.Desai). 17. In view of the aforesaid binding decision of