Another attempt by the Waqf board to illegally claim ownership of public property has been thwarted by the Delhi High Court. First, the High Court on Monday dismissed a petition by the Shahi Idgah Waqf Management Committee opposing the installation of a statue of Rani of Jhansi in the Shahi Idgah Park, claiming that the park too was Waqf property (PDF). The Waqf committee had petitioned the court to restrain the Delhi Development Authority (DDA) and Municipal Corporation of Delhi (MCD) from ‘encroaching’ on Waqf property.
The Shahi Idgah (Waqf) Managing Committee had moved a petition through its president Haji Shakir Dost Mohammad, seeking direction to not encroach upon Waqf property of the Shahi Idgah in Sadar Bazar, which, they claimed, also included the Idgah Park surrounding it.
Another petition in the High Court was filed by the Idgah committee challenging the order by the single judge on the 23rd of September where the Idgah Waqf Committee’s petition was dismissed.
Essentially, the Idgah Committee petition challenging the installation of the Maharani of Jhansi statue in the surrounding park was dismissed by the Delhi High Court single judge bench on the 23rd of September. The single judge, Justice Dharmesh Sharma passed an order saying that the committee had no locus standi and the ownership of the park belonged to DDA. Thereafter, the Idgah committee challenged this order in the High Court. A division bench of Chief Justice designate, Justice Manmohan and Justice Tushar Rao Gedela then passed scathing observations on the 25th of September against the Idgah Waqf committee for their assertions against Justice Dharmesh Sharma, calling the petition communal and scandalous.
What did the Shahi Idgah Waqf Management Committee say in its initial petition, dismissed by Judge Dharmesh Sharma
The Shahi Idgah Waqf Management Committee filed the petition through its President Haji Shakir Dost Mohammad. The petition wanted the court to restrict the “encroachment” by DDA and MCD into Waqf’s property and construction of any statue/structure inside the Shahi Idgah Park, which they claimed was a Waqf property.
Mohammad claimed that he had the locus standi to file the petition on the basis of Section 3(k) of the Waqf Act,
1995, which says.
Section 3(k) of the Waqf Act says:
“(k) “person interested in a 1[waqf]” means any person who is entitled to receive any pecuniary or other benefits from the 1[waqf] and includes—
(i) any person who has the right to [offer prayer‟ or to perform any religious right in a mosque, idgah, imambara, dargah [khanqah] peerkhana and karbala], maqbara, graveyard or any other religious institution connected with the [waqf] or to participate in any religious or charitable institution under the [waqf];…”
To bolster the claim that the Park was a Waqf property, Mohammad produced a purported notification published in 1970 which claimed that the Park was an ancient property built during the Mughal period. Mohammad further claimed that the property was being used to offer Namaz and could accommodate 50,000 ‘namazis’ at one time.
The Waqf Committee led by Mohammad claimed in their petition that they were “shocked” when in August 2024 a JCB entered the park to install a statue of Rani of Jhansi. Mohammad also made a representation to the Delhi Minority Commission. The Minority Commission had passed an order saying that the proposal to move the statue of Maharani of Jhansi to the Shahi Idgah Park would public sentiments and create a law and order situation, and therefore, the status quo should be maintained. Mohammad approached the court because the tenure of the previous minority commission was over and sought the court to instruct DDA and MCD not to install the statue.
What the petition by the Delhi Waqf Board (DWB) said
The Delhi Waqf Board (DWB) filed a short petition in which it said that a joint inspection of the Park was conducted by the DWB, DDA and MCD on the 13th of September 2024. During the inspection, the property was also measured. The DWB acknowledged that the measurements taken prove that the Park belonged to the DDA and not the Waqf.
Shahi Idgah Waqf Committee opposed the submission by the Delhi Waqf Board
The Shahi Idgah Waqf Management Committee led by Mohammad disputed the submission of the DWB stating that their submission in court and their submission to the Delhi Minority Commission were “diametrically opposite”.
According to the Shahi Idgah Committee, the DWB said to the minority commission that the Park too belonged to Waqf and that the property has been under continuous use and occupation by their religious community since the Mughal period, and that the property was acquired by Sunni Majlis-e-Auqaf, the predecessor of the DWB, without any interference from anyone, including the respondent authorities. The Idgah committee said that DWB had also challenged the ‘no objection certificate’ given by the DDA for the installation of the statue saying that the park directly faces the mosque where Namaz is offered by Muslims.
The MCD, in turn, urged that the Minority Commission had no right to pass an order to maintain the status quo at the Park.
The decision of the Delhi High Court single judge Dharmesh Sharma dismissing the claims by Waqf
The court in its judgement said that there was no dispute that the surrounding area of the mosque and the park belonged to the DDA and was not a waqf property. This was apparently from the fact that the DWB had conducted a physical inspection of the park along with DDA and MCD and the measurements had confirmed that the park was indeed not a part of the Waqf property.
The court observed citing a previous order regarding the same park:
To sum up, the aforesaid decision has also clarified that the parks/open ground surrounding the Shahi Idgah are the property of respondent No.1/DDA, and have been maintained by the Horticultural Division-II of the DDA, which is responsible for ensuring that the site is used by public visitors for recreational purposes. Furthermore, even the DWB does not authorize the use of the park for any purpose other than religious activities. The bottom line is that, since the parks/open ground adjoining the Shahi Idgah and located within the Idgah walls are the property of respondent No.1/DDA, it is solely the DDA’s responsibility to allocate portions of the said land for public use as it
The court astutely observed that the “real bone of contention seems to be the installation of the statue of Maharani of Jhansi” and the apprehension that it may lead to a “law and order situation”.
The court further observed that the petition by Mohammad, stating that their right to offer prayers was being infringed upon was baseless. The court said:
Even assuming for the sake of convenience that the petitioner/Committee has locus-standi to prefer the instant writ petition, this Court does not see as to how their right to offer prayers or to perform any religious rights is being endangered in any manner. It goes without saying that the status quo order passed by the Delhi Minority Commission was palpably without any jurisdiction.
Affirming that the petitioner (Mohammad) had no legal or fundamental right to oppose the maintenance of the park surrounding the Shahi Idgah mosque by DDA and the installation of the Maharani of Jhansi statue, the court found that the petition was without merit and cause.
The court further found that the Delhi Waqf Board lied before the Delhi Minority Commission. The court said:
“..evidently the facts stated in the aforesaid written submissions filed before the Delhi Minority Commission were neither based upon any physical inspection nor based on the correct measurements of the subject property, and there is nothing to discern that the respondent No.4/DWB has not placed the correct factual status of the property on record”.
Scathing oral observations by the High Court two-judge bench dismissing review petition
After the single-judge bench of the High Court dismissed the petition by the Shahi Idgah Waqf Management Committee on the 23rd of September, the committee filed a petition challenging the decision of Justice Dharmesh Sharma. A division bench of Chief Justice designate, Justice Manmohan and Justice Tushar Rao Gedela then passed scathing observations on the 25th of September against the Idgah Waqf committee for their assertions against Justice Dharmesh Sharma, calling the petition communal and scandalous.
The division bench, according to a LiveLaw report said, “Someone has clearly lost it….The person who’s doing it has got totally swayed. Just because someone has got emotionally swayed… My brother is pointing out, she’s a national hero. Let’s not divide history on communal grounds. The petition itself is divisive. Courts don’t get involved in communal politics. She’s a national hero, cutting across all religious lines. And you’re doing this on religious lines.”
The court further said, “In fact, I must say, the petitioner is doing communal politics and using the court in the process. Unfortunately it is so. And look at the wordings which have been used for the learned single judge. Withdraw these pleadings please and give us an apology letter…. This is scandalous. Absolutely scandalous…. Communal politics being played through court. She is a national hero. This is not fair what you people are doing“.
The court said that the pleading was ‘scandalous’ against the single judge and asserted that the judge may be right or wrong, but such ‘scandalous’ pleadings cannot be made by the lawyers.
The court said that the petitioners were using the court to do communal politics. “The intent, it seems, is to do communal politics through court…. Rani Lakshmibai has nothing to do with religion. In case the land belonged to you, you should have volunteered yourself.” “Courts cannot be used for this purpose. Do communal politics outside court. Don’t use courts in this process. And you are using courts in the process.”
The petitioner admitted that the assertions in the petition against the single judge were scandalous and agreed to withdraw the petition. “The learned senior counsel for the appellant admits that the aforesaid paragraphs are scandalous and shall be deleted forthwith. Let an application to the said effect be filed by tomorrow,” the bench ordered.
Reportedly, the division bench has asked the petitioner to submit a letter of apology to the court and the next hearing would be held on 27th September 2024.
Conclusions
There are several facts and conclusions that emerge from the two orders passed by the High Court – the single judge order passed by Justice Dharmes Sharma and the division bench order passed by Chief Justice designate, Justice Manmohan and Justice Tushar Rao Gedela.
First and foremost, the Waqf committees – whether it’s the Shahi Idgah committee or the Delhi Waqf Board, are trying to expand their properties and ensure that even the areas surrounding mosques are declared Waqf land, simply because it was used during the Mughal period. Secondly, to do so, the Delhi Waqf Board made fallacious representations to the Delhi Minority Commission and lied in its submission. It is true that in front of the court, they backtracked and conceded that the park belonged to DDA, however, to the Delhi Minority Commission, their submissions were false, claiming Waqf ownership of the park. Another dangerous conclusion which can be drawn from this case is that the Delhi Minority Commission, which comes under the Delhi AAP government exceeded its brief by passing an order to maintain the status quo and instructing DDA to note instal the Maharani of Jhansi statue.
The Delhi Waqf Board’s chairman is AAP leader Amanatullah Khan who has been named in a scam related to Waqf properties. In September, Amanatullah Khan was arrested by the ED. In 2016, a case was lodged against Khan following a complaint from the sub-divisional magistrate (headquarters), revenue department, alleging that appointments to various “existing and non-existing posts” in the Waqf Board were “arbitrary and illegal”.
The complainant, Hafiz Irshad Qureshi alleged that 33 people were recruited to the Board on a contractual basis in flagrant violation of established rules or regulations. He further alleged that some of those appointed to the board were related to Khan and most of them belonged to his constituency, Okhla.
Four years later, in 2020, the ACB registered an FIR against him under Section 7 (public servant taking gratification) of the Prevention of Corruption Act, and Section 120-B (criminal conspiracy) of the IPC.
The CBI had also booked AAP MLA from Okhla under the prevention of corruption act and other relevant sections of the IPC after a complaint was filed against him in 2016. Khan was also accused of corrupt actions and criminal offences including deliberate and criminal violation of rules, and regulations, and misuse of position.
Reportedly, CBI had probed the matter and found substantial evidence against the AAP MLA, following which the CBI sought permission from LG to proceed against him in July 2022.
Apart from Amanatullah Khan, Mehboob Alam, then CEO of Waqf Board was also charged by the premier agency with criminal violation of rules, misusing of position, and causing loss to the public exchequer and other relevant sections.
According to the complaint, the CEO of the new Waqf board and over 30 staff members were appointed and employed in contravention of Section 24 of the Waqf Act, 1955 and Delhi Waqf Rules, 1977. The FIR by CBI stated that irregular and illegal appointment of officials had led to the loss of revenue of the Delhi Waqf Board, and the appointments were done by misusing their official positions as public servants. It was alleged that waqf board properties were leased to the tenants and the encroachers were allowed to possess the properties in contravention of lease rules leading to the loss of revenue/assets for the board.
It is, therefore, evident that while the petition was dismissed once and would likely be dismissed again, there is a systemic problem that needs to be investigated and addressed by the government.
