Gujarat HC Declines 'Status Quo' In Plea Against Alleged Demolition Of Muslim Religious Structures, Residential Places In Gir Somnath

The Gujarat High Court on Thursday (October 3) refused to grant status quo in respect of alleged demolition of Muslim places of worship including mosques and graves, which was carried out by the State authorities on September 28 in Gir Somnath.

Issuing notice to the State on a plea filed by Auliya Auliya-e-Deen Committee–a Waqf, a single judge bench of Justice Sangeeta K Vishen while orally pronouncing the order said, "So far as status quo is concerned it is not in dispute that in 1983 a statement was made by the state government before this court about an inquiry to be conducted under Section 37 of the Bombay Land Revenue Code. The Deputy collector, in the inquiry conducted has passed an order whereby the land was declared to be land of the state government against which an appeal is filed before the Collector and the same is pending without any stay or protection to the petitioner". 

The court further said that in 2015 a civil suit was filed by petitioner and the senior civil judge had initially granted a stay; thereafter in 2020 there was an application filed by the petitioner seeking return of the plaint which was allowed on January 18, 2020. The plaint was returned and matter is pending now before Waqf tribunal. It further noted the state's submission that the "steps have ben taken for removal of encroachment and at the place there is a fencing as well". 

The court further noted that before the Waqf tribunal, no stay has been granted which has been noted by the high court in its order passed in a separate contempt proceedings filed this year.

"Therefore it is clearly recorded that there was no stay granted.  It has been informed that a writ petition has been filed before this court against order of January 18, 2020, however the same is still pending with no order. Therefore in all the proceedings no stay was granted...In the prima facie opinion of this court the petitioner does not deserve any status quo and hence the same is rejected," the court orally said. 

"In the prima facie opinion of this court though the petitioner claims to be manager of property however the PTR placed on record of the petition does not indicate any property, which aspect has been fairly conceded by the counsel for the petitioner. Otherwise also there is no clarity as to the petitioner is managing what properties as the petition is also bereft of any details," it orally added. 

Listing the main matter on October 24, the court asked the respondent state authorities to provide details of the alleged encroachment removed by it–namely nature of the building, the year in which it has been existence and the Geographical Indication (i.e. the location and year marking) of the structures. The court also asked the petitioner to provide the details of the properties as well. 

Background

The plea filed by the waqf–represented by its Mutawalli (manager/trustee), challenges the "grossly illegal, unconstitutional and without jurisdiction" action of the authorities, particularly the Collector, Gir Somnath in conducting "illegal overnight demolition" of centuries old Muslim religious places of worship including Masjid (mosque), Eidgaah, Dargahs (shrine), graves as well as "residential places" of Mujawars (attendant) of the Dargahs.

The plea claims that the action was carried out without issuing any notices for demolition and without granting any opportunity of hearing. The plea claims that the demolition action was carried out despite pending proceedings before the Waqf Tribunal and a pending revision proceedings before the Collector, Gir Somnath.

Contentions

During the hearing on Tuesday, senior advocate Mihir Thakore appearing for the petitioner had submitted that there was no notice issued by the authorities in respect of the "dargahs" and the notice was confined to only structures located outside the dargahs.

He had submitted that the name of the occupants of the demolished structures was there on the records, and the first course of action prior to demolition should have been to show that the residents were "unauthorised occupants". He had submitted that the requisite procedure mandated under the Bombay Land Revenue Code had not been followed prior to demolition.

"My name maybe wrongfully there but today I'm an occupant as shown in records...Not a single notice given for dargah and qabrastan (grave); notice was only given for huts. But despite that everything has been demolished. Dargah has also been removed. Ancient monuments have been demolished...First there has to be decision whether I am an unauthorized occupant or not...before they take action there has to be notice under Section 79A there has to be a hearing and thereafter there has to be an order which is followed by a 202 (section) eviction order. There is nothing on record to show that any such action has been taken. Can a high handed action be taken to destroy things?," Thakore had said. The petitioner sought status quo submitting that even though the old structures have been removed, the state may go ahead and allot the land. 

Meanwhile the State had opposed the grant of status quo, submitting that the demolition action had been completed. The counsel appearing for the state authorities had submitted fencing had been done and the possession was with the State. He further said that the property cards of the lands in question reflected that these were public lands. It was submitted that notices were issued to the respective occupants on September 5; their replies were duly considered and it was only thereafter the name of the respective occupants was directed to be deleted. It was argued that the notices were pasted on the site so it was incorrect to say that no notices have been issued

Case title: Auliya-e-Deen Committee, Junagadh Through its Mutawalli Ismailbhai Rahimbhai Che v/s State of Gujarat & Others