Gujarat High Court Sets Aside Injunction Passed By State Waqf Tribunal On Construction Of Railway Tracks Near Dargah

Observing thus, the Bench comprising Justice Umesh Trivedi set aside an order of the State Waqf Tribunal which granted injunction in favour of the Trustee of the concerned Dargah, halting the construction of railway line near the Dargah.

"What is claimed is that it (construction project) hinders the access to the Dargah and it comes within two railway tracks if it is permitted to be laid down. It is not the case of the plaintiff in the suit itself that the railway track is being laid from the Dargah or a property of a Dargah, and therefore, relief granted by the Tribunal, prima-facie, appears to be uncalled for, restraining National Level project of laying down a 3rd broad gauge railway track, that too, from both the ends project is already over except few meters because of this litigation."

The Court was hearing a revision application challenging the order of the Gujarat State Waqf Tribunal where the Respondent No. 1 had sought for restraining the Applicant (Collector) and its servants, engineers from damaging the suit property and not interfere with the entry of the trustees and devotees of the Dargah.

The Tribunal directed the Applicant authority to first obtain permission under Section 91 of the Waqf Act, 1995 from the Waqf Board for proceeding with the acquisition of land for constructing railway track.

The plaint was filed by one of the Trustees of the Firoj Saheb ni Dargah against the authorities under Section 83(1) of the Waqf Act. It was averred that the Dargah had four constructions and there were many devotees regularly visiting and on certain occasions there would be a big julus ie congregation. Therefore, the new railway track being laid which would pass through the property of the waqf would cause hindrance to the persons offering prayer at the Dargah.

It was contended by the Applicant authorities that the construction was commenced after proper sanctions and was in the interest of the public at large. Further, the railway line was not passing through the Dargah but rather passing through the way to Dargah. The authorities submitted that they invited members of the Trust to negotiate to chalk out an alternative way but the members did not come forward and approached the Tribunal with incorrect facts. Therefore, the injunction was premature and misconceived.

The authorities assured that by laying down the track, they will not hinder the ingress and egress to the Dargah for offering prayers. The Waqf Board added that that there was no waqf registered in the name of Firoz Saheb ni Dargah in their record. The Respondent produced several documents to contest that the Dargah was a property of a waqf named Mazar-e-Qutbi which was registered under the Act. Therefore, the Applicant could not cause hindrance by laying down the track near the property of the waqf.

The foremost question before the Bench was that the dargah was claimed to be waqf property without mentioning any registration number of the waqf or any documents that the Respondent was indeed the Trustee of the waqf. Later, there was a change in stance that the Respondent was a Manager of the Trust. However, the Bench explained that if the suit was filed by a waqf under the Mazar-e-Qutbi through its Trustee/s. The suit property is vested in its trustees and not anyone else. Therefore, per the Bench, the suit filed by the Respondent in his capacity as trustee was based on no material and his plaint was misconceived. The Respondent could be classified as a 'person interested in a Waqf' but he had no right to file a suit asserting proprietary rights to the property itself.

Additionally, the Dargah could not have any objection since the track was not being laid down within the Dargah property. Therefore, the Tribunal's relief was "uncalled for" and obstructed a "National Level Project".

It opined that the Applicant authority should not have been directed to seek sanction of the Board under Section 91 of Waqf Act since it was not yet concluded that the railway track was being laid down in the property of the Dargah. Lastly, the Bench concluded that the Tribunal was passed without jurisdiction as under Section 83(4) of the Act.

Keeping in view these reasons, the order passed by the Tribunal was set aside.

Case Title: CHIEF PROJECT MANAGER Versus Firoz SAHEB DARGAH THROUGH TRUSTEE SHAIKH ONALI ISMAILJI VISAWAARVALA

Case No.: C/CRA/65/2022

Citation: 2022 LiveLaw (Guj) 167

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