Recently, one Zahir Ahmed filed a petition in the Delhi High Court seeking de-sealing of a prime property next to Masjid Zabta Ganj, near India Gate in New Delhi. The property consists of one room, kitchen, bathroom and space adjacent to the mosque. In response, the Delhi High Court said: “The family of an Imam in a mosque cannot claim any right in the property of the mosque as the property vests in the Waqf and the Imam is merely appointed for the purposes of conducting prayers and taking care of the Waqf property. The Imam occupies the property in a capacity which is fiduciary in nature on behalf of the Waqf and any attempt to claim independent rights in the property would be impermissible.”
The petitioner had sought permission to reconstruct the property, besides challenging an eviction notice issued to him. The Court denied relief to the petitioner, calling him an “unauthorised occupant” and an encroacher of the property belonging to the Delhi Waqf Board. It directed him to pay Rs 15 lakh to the Board within eight weeks, considering the duration of the illegal occupation of the premises and the location of the property.
“The present petition is yet another example of the manner in which public places of worship are converted into private tenements and rights are sought to be claimed by priests, pandits, imams, caretakers and their families, in an illegal and unauthorised manner,” the Court said. It further observed that the petitioner has been unable to show any title to the property. It cited the nature of the property as a place of worship allotted to the Waqf and held the petitioner liable to pay charges for unauthorised occupation as also the costs of the litigation.
The petitioner claimed that he and his family had been living on the property for decades and it was separated from the mosque by a wall. The Court said the petitioner and the three individuals whom he represented were clearly unauthorised occupants and encroachers with no right over the property. The Court further said that the petitioner, who is the son of an imam, was merely a family member and has himself occupied and permitted others to occupy the property for decades without any rights. It noted that the imam was appointed in 1981, but the petitioner continued to illegally encroach and occupy the prime property next to the mosque.
The Court also said that the petitioner lives with his son in South Delhi’s Sukhdev Vihar and could not have claimed any rights to the property. It added that he has embroiled the Waqf Board in this long-drawn litigation on a completely false and incorrect premise. The Court passed orders that the Waqf Board shall secure the land allotted to it by way of the gazette notification issued in terms of the agreement registered on July 3, 1945, and it shall ensure that no land beyond the 0.095 acres is occupied by any person, including the current imam or his family or occupants on his behalf.
The Court said: “In the facts and circumstances of this case, it is deemed appropriate to direct the concerned SDM along with the Delhi Waqf Board officials to conduct a proper demarcation and ensure that the land occupied by the mosque is as per its allotment and no one is able to illegally occupy any portion beyond what is permissible. The demarcation to be carried out within 4 weeks”.
This is a clear case of encroachment and conversion of public place into private property. Encroachment of public space is common, rather rampant, in our country. Across cities and towns, one can find encroachments on government land, illegally occupying the land for residing or using the space for business. The Ministry of Railways, the Ministry of Defence and numerous places of worship have a huge chunk of land spread across the length and breadth of the country. So, it is natural that the maximum encroachment is on land belonging to these areas, as per the available data.
The National Capital Territory of Delhi is a fine example of how encroachers occupy public spaces and government land in connivance with concerned authorities. As per the existing rule, the land-owning agency has to bear the cost, pay for rehabilitation (shifting) of encroachers and get the land encroachment-free, which is a big stumbling block often due to lack of funds for such activities, thus allowing the encroachers to continue illegally for long periods. Later, they start demanding legitimacy to the encroached land. Several examples are available where the encroachers once rehabilitated by land-owning agencies to a government-allotted pucca housing facility return to again grab the same land which they had encroached upon and subsequently rent it out to other grabbers.
It is not always true that encroachments are done by the displaced or poor people, who migrate to cities and towns in search of livelihood and work. The rich and mighty also encroach as per their whims. For instance, in Delhi, the majority of the plotted residential colony pedestrian walkways are encroached upon by the local residents, in order to park their cars.
In view of the rising number of pleas filed before the court in connection with encroachments on government land, the Madras High Court has observed that “even if GOD encroaches upon public space, Courts will direct removal of such encroachments”, since public interest and the rule of law must be safeguarded and upheld. The Court severely criticised the encroachment made by Arulmighu Palapattarai Mariamman Tirukoil on a public street.
The Delhi High Court recently observed that places of worship cannot encroach upon public land and hinder developmental activities meant for the larger segment of the public. Justice Prathiba M Singh made the observations while paving the way for demolition of portions of a mandir and a masjid situated at Jheel ka Piao in Delhi’s ITO area for making the pedestrian pathway uniform. The Court observed that the public works department has to be permitted to make the pedestrian pathway uniform so as to not cause inconvenience to pedestrians on the busy stretch of road which also has access to a Metro station.
Strict enforcement of anti-encroachment law and rule is a must with zero tolerance. There has to be a specific drive to end all encroachments.
—By Abhilash Singh and India Legal Bureau