Case: WAQF BOARD, RAJASTHAN Vs. JINDAL SAW LIMITED &amp; ORS

basis of which permission to lease was granted, Survey No. 931 over which the said structure is found in the survey report was not part of the lease. Survey No. 6731 measuring 158 Bigha 12 Biswa was the one over which the writ petitioner was granted permission to do the mining work but there is no document or report to show that any part of Survey No. 6731 was ever declared to be a religious structure within the meaning of waqf as defined under the Act. The learned counsel for the parties furnished the photocopies of the original documents on the basis of which reliance was placed by the appellant that the Tiranga Qalandari Masjid in Village Pur is a mosque and, therefore, no mining activity can be undertaken. 13. The first document so produced is undated but the subject shows that it is in respect of Auqaf to be registered in Ajmer and Sunel Regions of the State till 5.1.1959 and in the rest of Rajasthan by 1.4.1955. A reading of the said report shows that it does not have any survey number, though the value of waqf was assessed at Rs.900/- and the purpose of use was for Namaaz. Thereafter, a notification was published on 23.9.1965 declaring Qalandari Masjid of Tiranga as the waqf property as the nature and object are pious, religious and for offering prayers. The appellant has produced an extract from its register pointing out that 12 x 9 measuring 108 is Tiranga Ki Qalandari Masjid. Another document produced by the appellant is the survey report dated 15.1.2002 to the effect that the Qalandari Masjid on Tiranga Hill is situated in Survey No. 931. 14. With this factual background, Mr. Ranjit Kumar and Mr. C.S. Vaidyanathan have argued that the claim of the appellant is wholly untenable as at no point of time, any revenue record shows any religious structure on the land comprising in Survey No. 6731. In fact, the religious structure is said to be in existence over Survey No. 931. Still further, the record of the appellant shows that the area of the religious structure is 108 feet whereas in the second survey report, the area is shown to be 525 feet. Hence, there is a discrepancy about the area over which the religious structure is in existence. 15. It has also been contended that a perusal of the photographs shows that the structure is totally dilapidated without any roof and in fact a wall and some broken derelict platform exist at the spot. The area is surrounded by vegetation and there is also nothing to suggest that the structure was ever used for offering prayers (Namaaz) as neither the area is accessible, nor there is any facility of Wazoo (The practice of ritual purification i.e., to wash face, hands, arms and feet before daily prayer), which is stated to be an essential step before offering prayer. The experts from the Archaeological Department have reported that the structure has no historical or archaeological importance. It is further contended that the Tehsildar, before the possession was delivered, had given an extensive report of each of the structure existing on the land proposed to be given. The lands for graveyard and other religious structures have been excluded from the lease. Therefore, the act of identification carried out years before raising of the dispute done by the revenue officials in the course of their official duties carry presumption of correctness. It shows that the structure had no religious value. 16. We have heard learned counsel for the parties at length and find no merit in the appeals. The Qalandari Masjid on Tiranga Hill as per the document produced by the appellant is located on Survey No. 931. There is no assertion that the Survey No. 931 is changed as Survey No. 6731. In fact, the old number of Survey No. 6731 is 9646 or may be some other number but positively not the survey number 931. Therefore, the claim of the appellant is on a different portion of land and not the land leased to the writ petitioner. There is discrepancy in the total area of the Masjid in the two documents, i.e., the extract produced by the appellant from the register and the second survey report. The letter dated 17.4.2012 by the Anjuman Committee is based upon hearsay and is not of any binding value. 17. Still further, there is no evidence at any given point of time that the structure was being used as a mosque. There is no allegation or proof of either of dedication or user or grant which can be termed as a waqf within the meaning of the Act. Section 3 (r) of the Act reads thus:- [(r) waqf means the permanent dedication by any person, of any movable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable and includes— (i) a waqf by user but such waqf shall not cease to be a waqf by reason only of the user having ceased irrespective of the period of such cesser; (ii) a Shamlat Patti, Shamlat Deh, Jumla Malkkan or by any other name entered in a revenue record; (iii) xxx xxx 18. The report of the experts is relevant only to the extent that the structure has no archaeological or historical importance. In the absence of any proof of dedication or user, a dilapidated wall or a platform cannot be conferred a status of a religious place for the purpose of offering prayers/Namaaz. 19. The stand of the State Government that they have identified it to be a religious structure comprising in Khasra No. 6731 has not been produced on record. There is nothing on record that such decision if any, was arrived at after associating the writ petitioner. It is always open to the State as lessor to exercise the powers conferred in it by the lease deed after complying the principles of natural justice and on good and sufficient grounds.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]16. We have heard learned counsel for the parties at length and find no merit in the appeals. The Qalandari Masjid on Tiranga Hill as per the document produced by the appellant is located on Survey No. 931. There is no assertion that the Survey No. 931 is changed as Survey No. 6731. In fact, the old number of Survey No. 6731 is 9646 or may be some other number but positively not the survey number 931. Therefore, the claim of the appellant is on a different portion of land and not the land leased to the writ petitioner. There is discrepancy in the total area of the Masjid in the two documents, i.e., the extract produced by the appellant from the register and the second survey report. The letter dated 17.4.2012 by the Anjuman Committee is based upon hearsay and is not of any binding value.17. Still further, there is no evidence at any given point of time that the structure was being used as a mosque. There is no allegation or proof of either of dedication or user or grant which can be termed as a waqf within the meaning of the Act.18. The report of the experts is relevant only to the extent that the structure has no archaeological or historical importance. In the absence of any proof of dedication or user, a dilapidated wall or a platform cannot be conferred a status of a religious place for the purpose of offering prayers/Namaaz.19. The stand of the State Government that they have identified it to be a religious structure comprising in Khasra No. 6731 has not been produced on record. There is nothing on record that such decision if any, was arrived at after associating the writ petitioner. It is always open to the State as lessor to exercise the powers conferred in it by the lease deed after complying the principles of natural justice and on good and sufficient grounds.