IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:21.04.2008 CORAM: THE HON'BLE MR.JUSTICE P.JYOTHIMANI WRIT PETITION NO.12149 OF 1998 The Masjid-E-Aalishan @ Military Mosque rep. by its Secretary Janab Shaikh Liaquat Ali Munro Lines St.Thomas Mount Chennai 600 016. .. Petitioner vs. 1.The Union of India rep. by its Under Secretary to Government Ministry of Defence New Delhi. 2.The Defence Estate Officer Madras Circle No.306, Anna Salai Chennai 600 018. 3.The Station Commandant HQ ATNKK & G Area (Q) Station Headquarters Fort St.George Chennai 600 009. 4.The Cantonment Board rep. by its Executive Officer St.Thomas Mount Chennai 600 016. 5.The Garrison Engineer (Projects) St.Thomas Mount Barrack No.2, Military Camp Pallavaram Chennai 600 043. .. Respondents Writ petition filed under Article 226 of the Constitution of India praying for issuance of Writ of Mandamus as stated therein. https://hcservices.ecourts.gov.in/hcservices/ For petitioner : Mr.Habibullha Basha,Sr.Counsel for Mr.K.Ilias Ali For respondents : Mr.K.Gunasekar,ACGSC .. ORDER The petitioner is the Masjid-E-Aalishan @ Military Mosque, St.Thomas Mount, represented by its Secretary. The Mosque is situated in T.S.No.1449-1, Munro Lines, St.Thomas Mount, founded in the year 1877 for both defence personnel and civilian Muslims. It is situated in 0.38 acres of land in the above said Town Survey Number and the petitioner is a Wakf notified under the Wakf Act,1954, published in the Government gazette on 17.12.1958. The Mosque, which is situated on West Raja Street in Munro Lines is surrounded by military quarters and the road on the other side. According to the petitioner, the military authorities have provided 6 feet wide and 67 feet long pathway from the West Raja Street to the petitioner Mosque to enable the Muslim civilians to approach the Mosque for their prayers. 2. It is also the case of the petitioner that for the purpose of security the military authorities insisted compound walls to prevent trespass. In 1996, due to heavy rain, the compound walls surrounding the Mosque collapsed. When the petitioner Mosque attempted to reconstruct the said compound wall, they were prevented from doing so by the military personnel under instructions from the second respondent, Defence Estate Officer by his letter dated 12.03.1997. The Tamil Nadu Wakf Board by a letter dated 13.03.1997 has informed the military authorities that the Mosque is a notified Wakf under Wakf Act,1954 and the same is in existence for the past 140 years and construction of compound wall is essential to safeguard the interest of the Mosque. The petitioner Mosque also made a representation on 08.04.1997 to the second respondent. 2(a). According to the petitioner, since the property has been declared as Wakf property, as per the Wakf Act, the same cannot be treated as a defence land. Joint survey was conducted on 16.04.1998 in the presence of military authorities and the members of the petitioner Mosque, and in spite of it, the defence authorities have attempted to interfere with the possession of the Mosque. In the meantime, the 4th respondent, who is the Executive Officer of the Cantonment Board, has issued an order on 08.08.1997, permitting the petitioner to reconstruct the compound wall on the existing foundation and in spite of the same the second respondent, who is claiming the property as a defence land has been objecting for putting up the compound wall. 2(b). It is the case of the petitioner that in the year 1959, the second respondent has issued a notice to the petitioner, as to why the petitioner should not be declared as unauthorised occupant. That was https://hcservices.ecourts.gov.in/hcservices/ replied. On 16.04.1960, the second respondent has ordered eviction of the petitioner's Mosque. As against the said order, the petitioner has approached this Court. However, in the meantime, the dispute between the petitioner and the second respondent has been settled out of Court and the military authorities have handed over the lands to the petitioner Mosque. In spite of that the respondents have been evading issuance of handing over and taking over certificate. In the letter of the Government of India, Ministry of Defence dated 16.07.1976, it has been explained that the properties are Wakf property, the military authorities should not question the petitioner Mosque taking lease of land and building the same. Therefore, in 1960, the matter has been settled and the possession has been handed over lawfully. Inasmuch as the respondents have acknowledged the right of the petitioner's Mosque in the place, it is only incidental to permit the petitioner to put up the compound wall, which has been destroyed due to heavy rain. 3. The respondents have filed a counter affidavit. The respondents question the maintainability of the writ petition and states that the petitioner's remedy is elsewhere. According to the respondents, the Mosque is a regimental Mosque, where the civilians were permitted to offer prayers. It is the case of the respondents that an extent of 0.38 acres, where the military Mosque is situated belong to Government of India, Ministry of Defence under the management of second respondent, Estate Officer. It is the further case of the respondents that the petitioner without consulting the authority of Defence Department, declared the Mosque as Wakf property in the gazette notification dated 17.12.1958 issued by the State Government. 3(a). It is the case of the respondents that there are several military family quarters adjacent to the Mosque. Since the military Mosque is situated within the unit line (Muro lines) on defence land, the Defence Department has not permitted the Mosque authority to construct compound wall separately and on the adjacent lands on security grounds. It was objected due to the reason that putting up of such compound wall around the military Mosque would close the approach road to the nearby constructed family complex for troops who are serving the field areas. According to the respondents, the petitioner cannot claim absolute ownership around the Mosque and the adjacent land. 3(b). It is the case of the respondents that there is a common access to the unit line and Mosque and therefore, the compound wall cannot be put up. It is the further case of the respondents, while admitting the fact that the Government has recognised the Mosque as Wakf property, it has not stated that the defence land around the military Mosque is Wakf property. Since there is a common access, the petitioner has no right exclusively for the benefit of the Mosque. 4. Mr.Habibullha Basha, learned senior counsel appearing for the petitioner would submit that inasmuch as the petitioner Mosque has https://hcservices.ecourts.gov.in/hcservices/ been declared as Wakf, as gzetted in the notification dated 17.12.1958, it becomes the Wakf property and it is not open to the respondents now to make various conditions, especially when admittedly there has been a compound wall in existence, which has fallen due to incessant rain. He would also submit that the Cantonment Executive Officer, who belong to the respondents in his letter dated 08.08.1997 has permitted the petitioner to reconstruct the compound wall on the existing foundation in the land bearing GLAS No.335 classified as B2 land situated outside Bazar area of St.Thomas Mount. On the definite stand taken by the respondents themselves that Mosque is a Wakf property, now it is not open to them to deny for putting up of compound wall. It is in fact constitutional right and putting up of such compound wall which was already available is not going to interfere with anybody's right. 5. On the other hand, the learned counsel appearing for the respondents would vehemently contend that the declaration of Wakf in respect of the petitioner Mosque is not proper, that too without the permission from the respondents, who are the owners of the property. It is also submitted by him that inasmuch as these are the lands belonging to the Defence Department, high risk is involved. In spite declaration of the Wakf is notified in the Government gazette, the property remains under the control of the Defence Department and unless and until the Defence Department permits, the petitioner cannot be allowed to put up any wall. Putting up of such wall will affect the real access to the housing units of the defence personnel. 6. I have heard learned senior counsel for the petitioner and the learned counsel for respondents and perused the various records. 7. At the out set, it is clear, as it is seen in the gazette notification of the Government of Madras dated 17.12.1958, that the property in which the military Mosque is situated in T.S.No.1449-1 has been declared and published as per Section 5(2) of the Wakf Act 1954. This fact is not denied by the respondents. Under the Wakf Act,1995, Section 4 speaks about the right of the State Government in conducting a preliminary survey of Wakfs. The provision contains various clauses including the ascertainment of nature and income and other particulars relating to each Wakf, including the properties, and an enquiry is contemplated under Section 4 of the Act by the State Government through the Survey Commissioner of Wakf. 8. Section 4(3) of the Act, enables the Survey Commissioner to make enquiry, which reads as follows: "4. Preliminary survey of Wakfs:- (1) ... (2) ... (3). The Survey Commissioner shall, after making such inquiry as he may consider necessary, submit his report, in respect of Wakfs existing at the date of the commencement of this Act in the State or any part https://hcservices.ecourts.gov.in/hcservices/ thereof, to the State Government containing the following particulars, namely:- (a) the number of Wakfs in the State showing the Shia Wakfs and Sunni Wakfs separately; (b) the nature and objects of each Wakf; (c) the gross income of the property comprised in each Wakf; (d) the amount of land revenue, cess, rates and taxes payable in respect of each Wakf; (e) the expenses incurred in the realisation of the income and the pay or other remuneration of the mutawalli of each Wakf; and (f) such other particulars relating to each Wakf as may be prescribed. " 9. After such inquiry is completed, the Survey Commissioner submits his report to the State Government and thereafter, under Section 5(1) of the Act, the State Government shall forward a copy of the same to the Wakf Board and thereafter, under Section 5(2) of the Act, the Wakf Board examine the report and publish it in the official gazette with all particulars as may be prescribed under Section 5 of the Act. The said section reads as follows: " 5. Publication of list of Wakfs:- (1) On receipt of a report under sub-section (3) of Section 4, the State Government shall forward a copy of the same to the Board. (2) The Board shall examine the report forwarded to it under sub-section (1) and publish in the Official Gazette a list of Sunni Wakfs or Shia Wakfs in the State, whether in existence at the commencement of this Act or coming into existence thereafter, to which the report relates, and containing such other particulars as may be prescribed." Section 6(4) states that the list of Wakfs shall, unless it is modified in pursuance of a decision or the Tribunal under sub-section (1), be final and conclusive. 10. In view of the statutory provisions as stated above, it is clear that if it is the case of the respondents that the declaration of Wakf is not proper, it is for them to proceed to the appropriate Tribunal and that does not mean that the respondents can interfere with the possession and enjoyment of the Wakf property. At this point https://hcservices.ecourts.gov.in/hcservices/ of time, it is relevant to note that it is not even the case of the respondents in the counter affidavit that there is no such Wakf declaration. What is stated is that, such a declaration of Wakf by notification of the Government in the gazette dated 17.12.1958 is without consulting the defence authorities. A reading of the said portion of the counter affidavit makes it clear that the respondents are now seeking to question the validity of the Wakf itself without resorting the procedure as contemplated under the Wakf Act at the appropriate time. A reading of the affidavit filed by the petitioner shows that it is not as if the petitioner is claiming absolute ownership over the property and it has right to worship during the appropriate times and for that purpose, certainly the petitioner Mosque is entitled to have the passage which has been in existence, to be retained. 11. It is relevant to point out that as per the notification, the existence of the Mosque has been clearly stated, which is as follows: "The value of Mosque is situated in T.S.No.1441-1, extent of a Mosque about (0-02) value of a small house in which the mutawalli is dwelling (with a mosque compound existent of the house will be about 0.01) – by subscription from the military person." 12. It is also relevant to point out that the Government of India, Ministry of Defence by a communication dated 16.07.1976 has made it clear that the Government is not proposed to question the Mosque authorities taking out the lease in respect of land in question together with building thereon. The Ministry of Defence states as follows: " 2. I am to add that in view of the position that the Mosque stands declared as a Mosque property, it is not proposed to pursue the question of the Mosque Authorities taking out a lease in respect of the land in question together with the buildings thereon." 13. The Secretary to Tamil Nadu, Wakf Board, which is a statutory authority, by his letter dated 13.03.1997, addressed to the Major General R.S.Nagara, Defence Headquarters, Chennai has informed that the compound wall of the military Mosque has been completely fallen, which resulted in the anti-social elements to use for their illegal activities and also informed him that when the Mosque authorities have attempted to reconstruct the wall, that has been obstructed. It was also informed that the Wakf property has been surveyed and notified as a Wakf in the gazette and the object of the Wakf is for offering daily and jumma prayers and the Mosque is in existence for the past 140 years and requested not to restrain the Muslim public from that locality to construct the fallen compound wall. https://hcservices.ecourts.gov.in/hcservices/ 14. By referring an application from the mutawalli of the petitioner dated 17.06.1997, the Cantonment Executive Officer of the Office of the Cantonment Board, St.Thomas Mount in his letter dated 08.08.1997, has in fact permitted the petitioner to reconstruct the compound wall in the following words: " You are hereby permitted to reconstruct the compound wall to an height of 4'6" with the existing foundation on land bearing GLAS No.335 classified as B2 land situated outside Bazar Area, St.Thomas Mount." It is also seen that the said letter dated 08.08.1997 has been marked to the second respondent Defence Estate Officer, who has not chosen to raise any such objection to that letter so far. 15. In view of the above said factual position, there is no difficulty to come to the conclusion that the petitioner Mosque has been in possession of the property along with passage and compound wall and certainly the petitioner is entitled to rebuild the compound wall. The contention by the learned counsel for the respondents that the petitioner must be driven to the Civil Court is not sustainable as per the statutory provisions under the Wakf Act. In view of the same, the writ petition is allowed forbearing the respondents from interfering with the petitioner Mosque land situated in T.S.No.1449-1 with right to reconstruct the compound wall as permitted by Cantonment Executive Officer in his letter dated 08.08.1997. No costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. kh To 1.The Under Secretary to Government Union of India Ministry of Defence New Delhi. 2.The Defence Estate Officer Madras Circle No.306, Anna Salai Chennai 600 018. https://hcservices.ecourts.gov.in/hcservices/ 3.The Station Commandant HQ ATNKK & G Area (Q) Station Headquarters Fort St.George Chennai 600 009. 4.The Executive Officer, The Cantonment Board St.Thomas Mount Chennai 600 016. 5.The Garrison Engineer (Projects) St.Thomas Mount Barrack No.2, Military Camp Pallavaram,Chennai 600 043. + one cc to M/s. K. Ilias Ali, Advocate, SR.22615 + one cc to Mr. K. Gunasekar, ACGSC. KLT(CO) RP 28.04.08 W.P.No.12149 of 1998 https://hcservices.ecourts.gov.in/hcservices/