Delhi High Court rules against former Imam’s son encroaching on a Waqf-owned Masjid Zabta Ganj at India Gate

Delhi, India: On March 10, Delhi High Court ruled that the occupation of public places of worship for residential purposes by the premises’ caretakers is contrary to the law.

The Delhi High Court was hearing a writ petition filed by Masjid Zabta Ganj’s former Imam’s son Zahir Ahmed challenging the Delhi Waqf Board’s (DWB) and Chanakyapuri’s Sub-Divisional Magistrate’s (SDM) eviction order and seeking reinstatement in the property. The impugned property is next to the Masjid Zabta Ganj, Man Singh Road, India Gate, New Delhi.

The counsel for the Petitioner, Advocate Khan Zulfiquar Khan, submitted that the Petitioner was in continuous and uninterrupted possession of the impugned property for several decades and hence was not liable to be dispossessed.

However, Justice Prathibha M Singh noted that the allotted land belongs to the Delhi Waqf Board, “The Mosque was allotted by way of Gazette notification issued in terms of the agreement registered on 3rd July 1945, by the Delhi Administration, in favour of the Delhi Waqf Board. Since then, the Waqf Board is in occupation of the property.” Furthermore, the SDM, Chanakyapuri, undertook an eviction drive and handed over the impugned property’s possession to DWB on March 5, 2020.

The counsel for the DWB, Advocate Wajeeh Shafiq, submitted that Petitioner came into the impugned property’s possession as his father, Abdul Majid, was an Imam at the mosque. The sum and substance of the DWB’s case are that the Petitioner “was nothing but an encroacher in the Waqf property and cannot claim any rights in the said property.”

The Court states, “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. Such public places of worship are converted into residences and are occupied by the persons who take care of the said places including by their extended families, domestic help and other trespassers, which would be contrary to law.”

“In some cases, this Court has also noticed that the said places of worship are extended beyond the allotted land and are converted into commercial property, and rents/lease amounts are also sought to be collected in an illegal and unauthorised manner,” the Court added.

The Court said, “The Petitioner herein, on a query from the Court, specifically admits that there is no title document to the property in question in his favour, which obviously there cannot be.”

“The Petitioner’s father was an Imam in the mosque and in the Court’s opinion, it could be due to this reason that the Petitioner unauthorisedly came into occupation of the said property,” the Court observed.

The Court stated, “The family of an Imam in a mosque cannot claim any rights 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 Court observed that even though an independent Imam was appointed for the mosque in 1981, the Petitioner continued his illegal occupation and encroachment of the impugned property. The Court said, “The Petitioner who was the son of the Imam, being merely a family member, has himself occupied and has permitted other to occupy this property for several decades without any rights. An independent Imam was appointed in the said property/mosque in 1981. However, in an illegal manner the Petitioner continued to encroach and occupy the property next to the mosque.”

Furthermore, the Court stated, “The property is a prime property. Photographs have been placed on record which show that unauthorised construction has been carried out. An electricity meter is also visible in the photographs. A number of persons were in occupation of the said property illegally.”

The Court dismissed the writ petition stating that it is devoid of any merit and hence liable to be dismissed. The Court said, “the Petitioner has been unable to show any title to the property in question and keeping in mind the nature of the property which is a place of worship allotted to the Waqf, in order to uphold public policy and to curb illegalities of this nature, this Court holds that the Petitioner is liable to pay occupation charges to the Waqf Board for unauthorised occupation as also costs of the litigation.”

The Court issued further directions in this writ petition:

• “The Waqf Board shall secure the land allotted to it by way of the Gazette Notification issued in terms of the agreement registered on 3rd July, 1945 as described in Appendix A.
• The Waqf Board 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 allotted land shall be used only for the purposes of the allotment i.e. to run the mosque and no illegal use shall be permitted.
• Considering the duration of illegal occupation of the premises and the location of the property, the Petitioner shall pay a sum of Rs.15,00,000/- to the Delhi Waqf Board within a period of eight weeks failing which the Waqf Board is permitted to seek enforcement of this order in accordance with law.
• In addition, a sum of Rs.2,00,000/- shall be deposited as costs with the Delhi Waqf Board, within 8 weeks.”