By Abdul Bari Masoud

The Delhi High Court on April 20  declined to intervene in the Centre’s transfer of a graveyard, one of the 123  Waqf properties owned  by the Delhi Waqf Board, to the Indo-Tibetan Border Police (ITBP) in 2017, saying it was normal for cemeteries “to be transferred wherever they constitute an obstacle” to any developmental work. The case is related to the graveyard land of Lal Masjid near the historic Basti Hazrat Nizamuddin in Delhi which was reportedly acquired without following the proper legal procedures.

The Delhi Waqf Board’s appeal against a single-bench judgment last month that declined to suspend the transfer of property to the ITBP on the grounds that the land would still be in the central government’s control was dismissed by a division bench of acting Chief Justice Vipin Sanghi and Justice Navin Chawla.  The Bench observed, “Graveyards are also shifted. There is no big difficulty about it.”

The Board’s senior attorney, Sanjoy Ghose, had previously submitted that the Centre had also authorised the ITBP to raise building on the graveyard and asked whether reparation might be made tomorrow: “How can reparation be made in such cases?” Today, public funds will be used to construct a structure, but what will happen tomorrow if the lordships rule in our favour?”

The Bench observed, “The submission of Mr Ghose that the land in question was being used as a burial ground and, therefore, it would not be possible to restore the same in the eventuality of the writ petition succeeding, has no force since it is not uncommon for graves to be shifted wherever they cause an obstruction in the development activity.”

It is to mention that on March 9 the Delhi High Court refused to grant the Delhi Waqf Board any interim relief in connection with the allotment of a property owned by it to the ITBP, and sought the Centre’s response to its petition challenging the Government’s decision to re-examine the de-listing of its 123 properties.

The property was allocated to ITBP sometime in 2017, and if the Delhi Waqf Board prevails in the current proceedings, the assignment can be reversed; Justice Yahswant Varma ruled there was no need to grant a stay.

“I’m presently not inclined to grant a stay. This is not a place to stay. It is not like the property has gone to private people. We can ask the Union to hand it back,” Justice Varma said.

On this, the division bench said, “We are not inclined to interfere with the same since it is an interim order and the rights of the appellant have been sufficiently protected.”

Last month, the single bench issued notice to the Centre in response to the Waqf Board’s plea on the 123 properties – mostly mosques and Muslim cemeteries – that were denotified from the land acquisition process in 2014 and were to be reverted to the Waqf Board. The previous UPA Government had passed an order, identifying these 123 important waqf assets after a lengthy and difficult struggle.

Despite the fact that the 123 properties were supposed to be reverted in 2014, the right wing group Indraprastha Vishwa Hindu Parishad contested the Government notification, which resulted in a court order requiring the Centre to make a judgment after stakeholders were given a right to reply.

In 2016, it formed a one-member committee for this purpose, which submitted its report in 2017. The Government created a two-member committee for the same purpose in August 2018, and the Delhi Development Authority (DDA) released a public notice in November 2021, requesting public comments on the properties. The Centre told the court on March 9 that the one-member committee’s report was rejected because it was inconclusive, and that it opposed the proposal to share it with the Waqf Board.

The Delhi Waqf Board claimed in a petition filed before the single bench by Counsel Wajeeh Shafiq that the one-member committee’s report was never made public and that there is no option for recalling the decision of withdrawal from the acquisition.

The petition further stated that the two-member committee is the second such panel created by the Centre to re-examine the status of the 123 properties following the formation of the one-member committee, and that the Centre had transferred one of them to ITBP in the interim.

“The whole mala fide purpose of appointment of committee after committee is to maintain confusion in respect of the title of the petitioner with regard to these waqf properties…

“Taking advantage of this, the Union of India has transferred a portion of waqf land comprising Khasra No. 484, Qadeemi Qabristan, Village South Inderpat, and Mathura Road – the waqf property mentioned at Serial No. 8 of the first list of denotified waqf properties – to ‘Indo Tibetan Border Police’,” Board’s petition said.  

The Delhi Waqf Board argues, in the petition, that once its properties were de-listed in 2014 under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation, and Resettlement Act, 2013, there is no provision in the law for the order of withdrawal from acquisition to be reversed.

While the process of deciding on the properties is still pending before the Centre-appointed committee, the Waqf Board has informed the court that the properties on the list are being given to other agencies such as the ITBP by the Centre.

The Waqf Board, claiming that the properties are religious in nature and that it is a stakeholder in the matter, has filed a petition seeking a copy of the one-man committee report, quashing the Centre’s decisions based on it, and then taking a new decision after giving it a reasonable opportunity to be heard.

Former Union Minister K Rahman Khan, reacting to the Delhi High Court verdict, said the government can acquire any land for public use under section 51A of the Land Acquisition Act 2013, but only with due process.

If the waqf land were not acquired with the process of law and due compensation was not paid, then the Board should go into appeal against the Delhi High Court, Khan told Radiance.

In 2013, during his stint as Minority Affairs Minister, the updated new waqf legislation was passed, and 123 prime waqf assets were decided to be reverted to the Delhi Waqf Board.

It’s worth noting that the Lal Masjid and its adjacent graveyard is close to the CBI headquarters, and the entire Central Government Offices (CGO) complex is reported to be built on waqf land. A number of central ministry offices are located in this region. The CGO facility was also identified in the Sachar Committee Report as a waqf property in “adverse possession.”

In July 2017, the DDA, which is known for illegally grabbing waqf properties across the national capital, attempted to take possession of this graveyard land in clear violation of a court order issued in 1996 that explicitly stated that the mosque and graves on the land should be preserved.

Then on the petition of Habib-ur Rehman, Delhi High Court Judge Vibhu Bakhru, in his order in July 2017, said that “considering all facts and circumstances, I direct the parties to maintain status-quo as regards to existing Lal Masjid and the graves only and this order will not cover any other residential accommodations”. Advocate Feroz Khan Ghazi had appeared for the petitioner in the  case. Speaking with Radiance, he underlined: “As per provisions of Delhi Waqf Act, once a waqf is created or once a property is dedicated to or declared as waqf property, it will remain a waqf property.”

In the case in hand, the land in dispute is a registered as a waqf property.

In 2017, The Government through a notification has acquired it and allotted it to ITBP who has taken over its possession.

The Waqf Board challenged its acquisition in Delhi High Court.  The High Court refused to interfere in the order of the Single Judge on the ground that the land has been acquired for Development Purpose and that there is no dearth of instances of shifting graves to some other place.

The ruling of the Delhi High Court, in my opinion, goes against the concept of Waqf and the requirements of the Waqf Act. Boards must file a Special Leave Petition in the Supreme Court of India to oppose the High Court’s orders, Ghazi said.

In this case, an Apex Court’s decision is needed to resolve a legal question about whether a Waqf land can be acquired by the state or the government for development purposes that are incompatible with the purpose or use of Waqf land, he added.

Seconding his views, Sarim Naved, Supreme Court Advocate, says the court can refuse to entertain any writ as the writ jurisdiction is inherently discretionary. In this case, the High Court has only refused to grant a stay and the main case is yet to be heard.

However, the Board can appeal to the Supreme Court for stay or they can approach the single judge bench for an early and quick hearing.

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