BEFORE HON’BLE’. HIGH-COURT OF CHHATTISGARH AT BILASPUR (C.G) WRIT PETITION NOg‘g’b 2004 PETITIONERS; . MOSQUE ANJUMAN IBADADGAH HANFIA G.E Roa Charoda d Through Secretary Anjuman Islamia Committee Charoda Bhiali Tah. Patan & Distt Durg C.G SHEIKH IQBAL aged about 5O year's}? s‘/O Sheikh Ramzan R/O Railway. Quarter No. 43 a Charoda Bmy Bhilai Tah. Patan & Distt Durg C .G Mohd Abra]: Khan - aged about 59 years s/o Abdul Awad Khan R/O L—C 22 Padum Nagar Bhilai Tah. Patan Distt. Durg C.G. Sheikh HAROON aged about 3O years s/o Sheikh Hussain Maroof Shoe Palace G.E Bhilai Tah . Patan Distt . Durg C . G. Ri zwan Mohammad aged about 34 years s/o Jaan Mohammad r/o Quarter no . 2 6 l BMY Charoda, G. E Ewagr Bhilai Tah . Patan Distt. Wrg C,G. MOHD. Yusuf KHAN Road Charoda aged about BI ~years s/o Mohd. ‘§ Yakub Khan r/o Khan Building G.E Road Charoda, Bhilai Tah. Patan Distt. Durg C,G. l VESUS R RE S PONDENTS: STATE OF CHHATTISGARH "’Through: Principal Secretary Home Department Govt of Chhattisgarh D.K.S Bhawan G.E. Road Raipur C.G CHAI RMAN CHHAAT T I SGARH S TATE WAKF BOARD D . K . S Bhawan G . E . Road Raipur C.G HAJI FAZIL BAKSH aged about 75 years s/o Amir Baksh r/o Fazil Manzil Near Hanfia Maszid G.E Road Charoda Bhilai Tah. Patan Distt. Durg C.G. THE COLLECTOR DURG C.G. SENIOR SUPERINTENDENT OF POLICE Distt . Durg C . G. PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA / 79 HIGH COURT OF JUD!CATURE AT BILASPUR (CHHATTISGARH) -———-—-_.__\__ Writ Petition No.31 90 of 2004 Mosque Aniuman lbadadgah HantTa. GE. Road Tehsil: Patan, District: Durg and others - Versus - Through Secretaiy Anjuman Islamia Committee Charoda, Bhilai, A V; l State of Chhattisgarh and othets POST FOR ORDER ONo2§ VCC ’SEPTEMBER, 2005 -\—¥i \ Sdl- / L.C. Bhadoo Judge 8U HIGH COURT OF JUDICATURE AT NLASPUR CHHATTISGARH Writ Pctition No.3190 cf 2004 Mosque Anjuman Ibadadgah Hanfia, GE. Road Through Secretary Anjuman Islamic Commiffee Char-oda, Bhilai, Tehsil: Pafnn, Disfr-ic‘r: burg and ofhers — Versus - . Sm‘re of Chhn'rfisgar-h and ofher's ORDER (Passed on Q’KV'rS‘epTember, 2005) LC. BHADOO J. 1. The pe‘rifioners have preferred This wrif pefi'fion under Ar‘ricle 226/227 of the Cons‘mu‘rion of India wifh a prayer That respondents be direcfed f0 open the lock put on the entrance gate of the mosque in question by respondent No.3 and to permit the petitioners and all members of Muslim community to offer prayer, as they have been doing so since last 4O years. 2. The petitioners‘ petition is that the petitioner No.1 is an unregistered "& Wakf and the land on which the mosque in question is standing belongs to the petitioner No.1 and rest of the petitioners and almost all the residents of Muslim community are offering prayer (Namaz) since 1963 within the premises of the said mosque. The land on which the mosque is standing was gifted by an oral gift which is called Hibba by late Dr. Abdul Gani Sahed to Muslim community of village Charoda, District burg and since then the Presen'r: - Shri v.6. Tamaskar', Advocure: For ‘rhe pefi'rioners. 5hri Sandeep Dubey, Govt. Advocate: For the responden‘rs No.1, 4 & 5. 5hri H.B. Agrawai, Sr. Advoca‘te: For The respondem' No.3. 8i Pagez of7 Muslim communi‘ry is offering prayer in ‘rhe mosque in question. Respondent No.3 is also a Muslim and he 100k a snap decision 1'0 pm lock on The enfmnce gale of 1'he mosque in question on 2-8-2004. Respondent No.3 by making a false declarafion and wi'l’houf noficing fhe pefifioner Noll go‘r 'rhe land along with mosque in quesfion regisfered in his name. A map showing The place of prayer since 1963 is marked as A. B. C. D. vide Annexure-P/Z. The mosque in question has separate electricity connection and meter. Respondent No.3 filed a civil suit for eviction of one of the tenants namely Ashok Kumar Choudhary. The only ground for eviction taken by respondent No.3 was that he wants to gift the shop to the petitioner No.1 Le. Masjid. . Return has been filed on behalf of respondent No.3 in which it has been mentioned that the alleged mosque is not a mosque now but a dismantled area, since respondent belongs to Tabliki Jamat while the petitioners belong to Hanifia Jamat. The property or mosque alleged is personal property of the respondent No.3, hence no question of opening the lock, as prayed for. The petitioners have no locus standi to bring this petition. The petitioners have never offered any prayer as public Wakf, therefore, no legal right has been ever accrued to any petitioner. The land does not belong to the petitioner No.1 since no documents have been filed, but admittedly, it belongs to respondent No.3 as mentioned in para—11 of Annexure-P/é. There is distinction between the private Ibadatgah and public Ibadatgah. The petitioners are offering prayer in another big masjid situated in the same area of Charoda, Bhilai, which is made for l {Hanifia Jamat. The fact of oral gift is denied. It is denied that the PageB of 7 pe‘rifioners are offering prayer since 1963. Om! gif‘r is nof admissible. The whole land mentioned in Annexure-P/Z is no? The property of responden'r No.3 as admi‘rfed fhof i'f is fhe proper‘ry of respondent No.3 in Annexure—P/6 a‘r para-11. Ul'rimafeiy, i1 has been prayed the? fhe writ pefifion be dismissed. 4. I have heard learned counsel for ihe parties. 5. 5hri v.6. Tamaskar, learned counsel for the petitioners, argued that there was Masjid in which the petitioners used to offer prayer daily. Even if there is no registered gift, the property can be gifted through oral gift and the concept of a private mosque is unknown to Muslim Law. He placed reliance on the judgment of the Madras High Court in the matter of NR. Abdul Azeez and others V. E. Sundanese Chettiar and others reported in AIR 1993 MADRAS 169, also on the decisions of the Hon'ble Apex Court in the matters of Mahboob 5ahab V. Syed Ismail and others reported in (1995) 3 supreme Court Cases 693, Illahi Shamsuddin Nadaf V. Sou. Jaitunbi Makbul Nadaf reported in (1994) 5 Supreme Court Cases 476, and Ram Niwas Todi and another V. Bibi Jabrunnissa and others reported in (1996) 6 Supreme Court Cases 444. He further argued that respondent No.3 has no right to‘put lock on the Masjid. 6. On the other hand, 5hri H.B. Agrawal, learned Senior Counsel for respondent No.3, argued that in fact, there is no Masjid and the whole property belongs to respondent No.3. The allegation that the petitioners used to offer prayer at the alleged mosque has not been established and \the same is denied. There are disputed facts which cannot be enquired .;\ l ,'\ $3 Page4 of7 info or gone info in The writ jurisdicfion. He further argued Thar of The dispu‘red place The building was in a dilapidafed condi‘rion and fho‘r has been demolished, and in fact, There is no building a? the sife in question where lock can be opened. 7. Having heard learned counsel for fhe parties, I have perused ‘rhe records of ‘rhe case. In the maf‘rer of Ram Niwas Todi and anofher (Supra) fhe Hon‘ble Apex Cour? held Thai:- “Oral giff-House property including open spaces of land appur‘renam' and subservien‘i fherefo— Oral gif‘r by fafher-imlaw ‘ro his daughfer-in-law wifh delivery of possession~ Valid." Similarly, in The maffer of Illahi shamsuddin Nadaf (Supra) the Hon'ble Apex Court held that: “Declaration as well as acceptance of gift may be oral whatever may be the nature of the property gifted- Donor dividing the house into two portions and giving actual possession to the appellant, and the respondent- Both of them living in their respective portions for the last more'than 40 years- Mutation of the property in their respective names-Held, the pppellant and the respondent are the owners of the portions ‘of the house which are in their respective possession." In the matter of Mahboob Sahab (Supra) the Hon'ble Apex Court. held that: 8’2 Pages of 7 “Giff- Immovable properfy- Ingredienfs of a valid giff- Need nof be in wri'ring and register-ed- Complefe divesting of possession of The property by The donor essential.“ Therefore, in view of ‘i'he above decision, i1’ is no‘r necessary in ‘rhe Muslim Law fha‘r 1'he gifi' can be made only Through in The wri‘r‘i'en regisfered document The gifT can be oral, however, musf be wi'i'h delivery of possession. In The case of NR. Abdul Azeez and o'l‘hers (Supra) the Madras High Court while dealing The quesTion in Second Appeal held ThaT: x(x “The Test wheTher a building is a mosque lies in The facT ThaT once iT was seT aparT as a mosque. IT is enough To make iT “Wakf”, provided public prayers are even once said wiTh The permission of The seTTlor. When a person purporTs To build a Masjid wiThin his house, or boundaries, and permiTs The public To enTer There and say Their prayers Then iT becomes a Masjid according To The opinion of all, provided ThaT he gives The public a righT of way. DedicaTion may be inferred from long user Thar properTy was wakf proper-Ty." l Now, The quesTion is wheTher The peTiTioners hay; been able To plead and esTablish ThaT There was any existing mosque and They were offering prayer in The said mosque. The avermenT made by The peTiTioners in The peTiTion has been denied by respondenT No.3 in his reTurn and he has sTaTed ThaT iT is a privaTe properTy. The peTiTioners never offered prayer aT The dispuTed place. Therefore, There is dispuTe beTween The parTies . 85 Page6 of 7 abau'r The existence of 'rhe mosque and offering of prayer by fhe pefifioners. There is no clear and cogem' any documem'ary evidence or other evidence which establishes 'I‘hui' The peiii'ioners used 1'0 offer prayer in fha‘r mosque. This fac'r requires enquiry at frioi offer ailowing 1’he parfies 1‘0 adduce ‘rheir respwl'ive evidence in fhe form of oral and documentary evidence wifhou‘l' which i'r is difficuii‘ 'fo arrive oi a conclusion that the petitioners were offering prayer at the disputed olace‘ Therefore, the judgment cited by learned counsel for the petitioners in the matter of eulom Abbas and others V. State of Umr Prodesh and others reported in (1982) 1 Supreme Court Cases 71 is of no help to the petitioners. In that matter the Hon‘ble Apex Court held that: " ............the petitioners are able to prove that they have existing or established customary rights to perform their religious ceremonies and functions on ‘the plots and the structures thereon simultaneously complaining of illegal deprivation or encroachment by executive officers at the behest of the Sunni community the reliefs sought by them by way of enforcement of such customary rights will have to be entertained and considered on merits and whatever relief they may be found legally and properly entitled to may have to be granted to ‘ them." 9. In the present case as has been mentioned that there is no material on record which establishes the averment made by the petitioners. Therefore, proper course for the petitioners is to file a civil suit for their rights against respondent No.3. Even otherwise, the writ petition does not Page7 of 7 lie in fhis case for- ‘rhe reason That *rhe dispufe is between fhe private per-sons. The wrif can be issued only agains‘r The Sfa‘l'e and responden‘r No.3 is a private parfy, Therefore, wrif cannof be issued. In fact the dispufe is be‘rween The pniva‘i'e par-fies. Therefore, proper ccurse for fhe pefi‘rioners is To approach The Civil CourT for redressal of Their-grievances. Even oTherwise, respondenT No.3 has menTioned in The reTurn ThaT as on daTe no building is exisTing aT The dispuTed place and The phoTographs have also been produced showing ThaT whaTever sTrucTure was There ThaT has been dismanTled, Therefore, in The circumsTances, relief soughT by The peTiTioners cannoT be granTed. 10. In The resulT, I am of The opinion ThaT The wriT peTiTion is noT mainTainable on The ground ThaT: (1) The presenT maTTer involves dispuTed facTs. (2) The dispuTe is beTween The privaTe parTies. (3) since There is no srruc'l'ure exisTing on The siTe, The relief prayed in The relief clause ThaT To direcT The respondenTs To open The lock \i puT on The enTrance gaTe of The mosque in quesTion connoT be allowed. Therefore, The wri'l' peTiTion is dismissed. No order as To cosTs. \ e Sd/— ~ r, L.C. Bhadoo Judge Barve