Gujarat High Court refuses to intervene in order declaring construction of madrassa on state property illegal

The Gujarat High Court recently refused to intervene in an order issued by the executive engineer of Surat Municipal Corporation, ordering the removal of a purported “Madrassa” which was allegedly built on government land, on the grounds that the construction had taken place without the prior authorization of the competent authority.

“In the opinion of the Court, in the absence of any evidence on the record regarding the actual operation of the educational institution and nothing on the record indicating an authorization to manage the educational institution or a license of construction for the construction of an educational institution and the uncontested factual assertion that the premises were used for commercial purposes, the Court is not inclined to interfere with the ongoing process, which, according to the Court , complies with the provisions of the GDPR, ” Judge AY Kogje mentioned.

The petitioners, Madrasa-e-Anware Rabbani Waqf Committee, had filed a motion to set aside the disputed notice and order which stated that the petitioner-Waqf was an unauthorized occupier of government land and that the construction on it land was illegal. The Applicant also requested an instruction from the Respondent authorities to regularize the construction of the Applicant’s premises.

The claimant’s case was that the land in question originally belonged to five brothers and through an oral deed of gift had been transferred in favor of the Waqf which was represented by the claimant as its ‘Muttwali’. The applicant subsequently ran a “Madrassa” to provide education for Muslim students. However, since the transaction was an oral deed of gift, it could not be recorded in the income register. Subsequently, in 2021, the city’s Superintendent of Surveys under Section 61 of the Property Tax Code ordered the removal of the Madrassa construction on the grounds that the construction was illegal even though a penalty had been imposed. was imposed on the applicant.

The Waqf Court ordered the petitioner to submit a new request for development or regularization authorization accompanied by the necessary plans and ordered defendants No. 1 and 2 to decide on this request in accordance with the law. However, place an order for 28and March 2022, Respondent (Executive Engineer) ordered removal of construction within 7 days. Consequently, the present procedure was initiated.

On the other hand, the defendant authorities maintained that the land in question had been acquired by the government in 1967 and that the original owners had received compensation in this respect. The land therefore belonged to the State authorities and the claimant had no legal right to occupy the structure and the Madrassa had no authorization for the safety of the children. It was argued that the claimant came in connection with the development of the land for public purposes.

Judgement

Judge AY Kogje observed that the photographs of the property did not show the operation of the school but rather the shutters showed that there was a commercial establishment (garage). Further, with regards to the management of educational institutions, the same is governed by the development control regulations of Gujarat with the permission of the authorities. Nothing in the record indicates that the construction was done for development purposes. No evidence was filed that students were studying at the institution.

Moreover, the land in question, owned by the five brothers, had been duly indemnified in 1967 and a receipt of possession had been issued to that effect by the brothers. For the bench, it appeared that the claimant and other occupants of the land were taking advantage of the fact that no income records were present. The state government has been advised to closely monitor the situation to rectify these shortcomings, including holding officials accountable.

The Court said the petitioner also failed to show the state a certificate of renovation and “construction completion” in response to the contested notice issued under Section 260(1)(a) of the Gujarat Provincial Municipal Corporations Act 1949. Furthermore, because the Applicant could not advance any document to prove legal occupancy, the Applicant’s property could not obtain development permission or building clearance of any kind.

Considering all these reasons, the Chamber was not inclined to interfere in the process initiated by the state authority. Accordingly, the motion was dismissed.

Case Title: MADRASA-E-ANWARE RABBANI WAQF COMMITTEE v/s SURAT MUNICIPAL CORPORATION

Case No: C/SCA/8283/2022

Click here to read/download the order

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