Holding

The Court held that the alleged Qalandari Masjid is situated on Survey No. 931, not on the leased Survey No. 6731, and there is no evidence of dedication or use as a mosque, so it does not constitute a waqf and the High Court's order allowing mining stands.

Summary

The Rajasthan Waqf Board claimed that a structure identified as the Qalandari Masjid on Tiranga Hill was a waqf religious site situated within Survey No. 6731, which had been leased to Jindal Saw Ltd for mining. The High Court allowed the mining lease to proceed, prompting the Board to appeal. The Supreme Court examined the survey records and found that the mosque was recorded in Survey No. 931, a parcel not covered by the lease, and noted discrepancies in the reported area of the structure. No evidence was produced to show that the structure had ever been dedicated, used, or recognized as a mosque or waqf under the Waqf Act. Consequently, the Court held that the structure could not be treated as a protected religious site and upheld the High Court's order, dismissing the appeals.

Issues considered

Whether the structure on Survey No. 6731 qualifies as a waqf religious place within the meaning of the Waqf Act, 1995.
Whether the Waqf Board's claim over the structure is valid given the discrepancy between Survey No. 931 and Survey No. 6731.
Whether the expert committee's findings and the State Government's identification of a religious structure are determinative in a writ petition under Article 226.
Whether the lease conditions prohibit mining activities over a religious structure and if the State, as lessor, can lawfully permit mining on the leased land.

Legislation cited

Constitution of Indias. Article 226
Waqf Act, 1995s. 3(r), s. 83

Subjects

WaqfReligious structureMining leaseSurvey discrepancyDedicationWaqf ActArticle 226Expert committeeLand leaseReligious property protection

Judgment

[2022] 5 S.C.R. 803 803

WAQF BOARD, RAJASTHAN A
v.
JINDAL SAW LIMITED & ORS.
(Civil Appeal No. 2788 of 2022)
APRIL 29, 2022 B

[HEMANT GUPTA AND V. RAMASUBRAMANIAN, JJ.]
Religious structure: Waqf property – Respondent no.1 was
granted lease of an area in Survey no.6731 for the purpose of
mining activities – Writ petition filed by respondent no.1 seeking C
direction to the Wakf Board-appellant and other respondents not to
interfere with the action of respondent no.1 in removing a structure
forming part of Khasra No. 6731 at Village Pur – Plea of Waqf
Board that there is a religious structure on the land comprising in
Survey No. 6731 – High Court allowed writ petition – Appeal by
Wakf Board – Held: The Qalandari Masjid on Tiranga Hill as per D
the document produced by the Waqf Board is located on Survey No.
931 – There is no assertion that the Survey No. 931 is changed as
Survey No. 6731 – Therefore, the claim of the Waqf Board is on a
different portion of land and not the land leased to respondent no.1
– There is also discrepancy in the total area of the Masjid in the E
documents produced – Moreover, there is no evidence to prove that
the structure was being used as a mosque and termed as Waqf – In
the absence of any proof of dedication or user, a dilapidated wall
or a platform cannot be conferred a status of a religious place – No
interference with the decision of High Court.
F
Dismissing the appeals, the Court
HELD: 1. The Qalandari Masjid on Tiranga Hill as per the
document produced by the appellant is located on Survey No.
931. There is no assertion that the Survey No. 931 is changed as
Survey No. 6731. In fact, the old number of Survey No. 6731 is G
9646 or may be some other number but positively not the survey
number 931. Therefore, the claim of the appellant is on a different
portion of land and not the land leased to the writ petitioner. There
is discrepancy in the total area of the Masjid in the two documents,

H
803
804 SUPREME COURT REPORTS [2022] 5 S.C.R.

A i.e., the extract produced by the appellant from the register and
the second survey report. The letter dated 17.4.2012 by the
Anjuman Committee is based upon hearsay and is not of any
binding value. [Para 16][810-E-G]
2. Still further, there is no evidence at any given point of
B time that the structure was being used as a mosque. There is no
allegation or proof of either of dedication or user or grant which
can be termed as a waqf within the meaning of the Act. The report
of the experts is relevant only to the extent that the structure
has no archaeological or historical importance. In the absence of
any proof of dedication or user, a dilapidated wall or a platform
C
cannot be conferred a status of a religious place for the purpose
of offering prayers/Namaaz. [Paras 17, 18][810-G; 811-A, C-D]
3. The stand of the State Government that they have
identified it to be a religious structure comprising in Khasra No.
6731 has not been produced on record. There is nothing on record
D
that such decision if any, was arrived at after associating the writ
petitioner. It is always open to the State as lessor to exercise the
powers conferred in it by the lease deed after complying the
principles of natural justice and on good and sufficient grounds.
[Para 19][811-E]
E
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2788
of 2022.
From the Judgment and Order dated 29.09.2021 of the High Court
of Judicature for Rajasthan Bench at Jodhpur in D.B. Civil Writ Petition
F No.8848 of 2020.
With
Civil Appeal No. 2789 of 2022.
C. S. Vaidyanathan, Ranjit Kumar, Dr. Manish Singhvi, Sr. Advs.,
G Prashant Bhushan, Devesh Agnihotri, Khushi Mohd., Anjum Parvez,
Ms. Nilofar Khan, Anurag Abhishek, Abhishek Singh, Nilaya
Bandhopadhyay, Arpit Prakash, Sandeep Kumar Jha, Abdul Qadir Abbasi,
Advs. for the Appellant.

H
WAQF BOARD, RAJASTHAN v. JINDAL SAW LIMITED & ORS. 805

The Judgment of the Court was delivered by A
HEMANT GUPTA, J.
1. The challenge in the present appeals is to an order dated
29.9.2021 passed by the High Court of Judicature for Rajasthan at
Jodhpur, whereby the writ petition filed by respondent No. 11 was allowed
directing the appellant and respondent Nos. 2 to 8 not to interfere with B
the action of the writ petitioner in removal of the structure forming part
of Khasra No. 6731 at Village Pur, Bhilwara, Rajasthan.
2. The writ petitioner was granted lease of an area
admeasuring1556.7817 hectares vide lease deed dated 8.12.2010 for
the mining of Gold, Silver, Lead, Zinc, Copper, Iron, Cobalt, Nickle and C
associated minerals near Village Dhedwas, Tehsil and District Bhilwara,
Rajasthan.
3. It was pointed out that the Tehsildar, Bhilwara had submitted a
report on 3.12.2010 after conducting an inquiry along with Revenue
Record Super Impose Site Plan in respect of Land Numbers, admeasuring D
142-15 bigha of village Samodi; Land Numbers admeasuring 33-09 bigha
of village Dariba; Land Numbers admeasuring 40-03 bigha of village
Pansal; Land Numbers admeasuring 127-02 bigha of village Malola;
Land Numbers admeasuring 241-14 bigha of village Dhulkheda; Land
Numbers admeasuring 748-02 bighas of village Pur after obtaining report E
from the concerned Patwaris. Such report shows that Land Number
897 of village Samodi is a Devsthan i.e. place of worship. It was
communicated that if the mining work is carried out without causing
harm to Devsthan and not using the harmful explosives, then there is no
objection in carrying out mining work in that survey number. In the
detailed report, certain survey numbers in different villages such as F
Samodi, Dariba, Pansal, Malola are mentioned wherein there was a
proposal not to grant permission and also certain other survey numbers
wherein permission was proposed to be given. In Survey Nos. 543 (6
Bigha 11 Biswa), 498 Min. (8 Bigha 6 Biswa) and42 (3 Biswa) of Malola
Village, there was a proposal not to grant permission in view of barren G
land near religious place. Similarly, in Dhulkheda Village, the proposal to
undertake mining was not granted in Survey Nos. 219 and220on account
of religious place and in Survey No. 365 for the reason of graveyard.
However, in respect of the area in question in Village Pur, the mining
1
For short, the ‘writ petitioner’ H
806 SUPREME COURT REPORTS [2022] 5 S.C.R.

A was proposed to be carried out in Land Survey No. 235. The permission
was proposed to be granted in respect of Survey No. 6731 measuring 158
Bigha 12 Biswa. It was thus proposed that permission is not to be granted
in total of 213 Bigha 11 Biswa, for the mining work whereas in 325 Bigha
19 Biswa, permission was to be granted. It is thereafter that the lease was
executed on 8.12.2010 by the State in favor of the writ petitioner.
B
4. The Survey Commissioner, Waqf of the State of Rajasthan,
conducted survey of the waqf properties in the year 1963. In the said
survey, a structure was found named as ‘Tiranga Ki Qalandari Masjid’
in the survey report. On the basis of said Survey report, a notification
was published on 23.9.1965 in which ‘Qalandari Masjid of Tiranga’ located
C at village Pur was notified as wakf. Later, on the basis of the said Gazette
Notification, the ‘Tiranga Ki Qalandari Masjid’ was entered in the waqf
register as admeasuring 12x9=108. Another survey was conducted in
village Pur, Bhilwarain accordance with the Waqf Act, 19952. The
‘Qalandari Masjid Tiranga’ was found in existence in Survey Number
D 931 as per the report dated 15.1.2002. Part III (b) of the said survey
report gives dimension of the mosque as 25x25x25x25, bounded on all
sides by Hills.
5. It may be stated that Survey No. 931 is not included in the list
of survey numbers of which lease was granted. There is no reference to
E Survey No. 931 as to whether lease is to be granted or not to be granted
for the same.
6. It appears that the Anjuman Committee addressed a letter to
the Chairman of the appellant-Board on 17.4.2012 to the effect that on
Tiranga Hill in Village Pur, there is a wall and Chabutrah (platform) on
so-called Qalandari Masjid wherein olden times laborers used to offer
F prayers. The elders had informed that they have not seen anybody
praying Namaaz nor there is access to water and stairs to reach the
platform. The office of the appellant responded on 18.4.2012 that the
area consisting of the platform over the Tiranga Hill should be saved
from mining. The said letters, when translated, read thus:-
G “17.4.2012
“It is submitted that there is a wall and delipidated platforms/
chabutrah at the so-called Qalandari Masjid situated at Tiranga
Hills where earlier some laborers used to offer prayers. By

2
H For short, the ‘Act’
WAQF BOARD, RAJASTHAN v. JINDAL SAW LIMITED & ORS. 807
[HEMANT GUPTA, J.]

enquiring from the elderly people, it came to our knowledge that A
no one was seen offering prayer/namaz at such place. Further,
neither there is any water there, nor there are stairs.
The miners informed that due to mining, the wall and chabutrah,
which are already in a dilapidated condition, could fall.
When we talked about this to the miners present there, then they B
respectfully agreed to reach to a settlement. Hence, kindly oblige
us by issuing directions/guidance to settle the issue.”
18.4.2012
“Subject- Relating to taking steps for the chabutara/platform as C
per the Shariyat.
In reference to your letter dated 17 April 2012.
In relation to the abovesaid letter, it is stated that there is a
chabutara/dilapidated platform at the Tiranga Hill situated at Village
Pur which is sought to be protected from mining activities and D
there have been talks of arriving at a settlement.
Hence, considering the present circumstances in this context as
well as keeping in mind the benefit of Wakf, take the requisite
decisions at your end and also inform the Wakf Board about the
same. Original is attached herewith.” E
7. On 23.4.2012, the Chairman of the appellant-Board
communicated to the Collector and to the Superintendent of Police that
the communication dated 18.4.2012 is being misinterpreted as the purpose
was to safeguard the interest of the waqf but the members of the Anjuman
Committee have acted for personal gain and, therefore, action should be F
taken. In response to the said letter, the District Magistrate communicated
that an FIR has been registered and a sum of Rs.65 lakhs has been
recovered. It was in this background, respondent No. 1 herein filed a
writ petition before the High Court.
8. The High Court constituted an Expert Committee to examine G
the following two questions:
“(i) As to whether the structure existing within the mining lease
area of the Petitioner was a mosque or structure which can be
removed for the purpose of carrying out lease hold activities within
the said area. H
808 SUPREME COURT REPORTS [2022] 5 S.C.R.

A (ii) The Committee shall also ascertain as to whether any illegal
mining activity within the mining lease area of the petitioner and if
so whether the same was carried out by the petitioner-company
or any other entity.”
9. It has come on record that such Committee was chaired by
B Shri R.K. Sinha, Controller General (Retd.) of India Bureau of Mines
along with Shri O.P. Kabra, nominee of the Secretary Mines, Department
of Mines and Geology, Rajasthan and Smt. Nandini Bhattacharya Sahu,
Regional Director (West), Archaeological Survey of India. Shri O.P.
Kabra, nominee of the Secretary Mines was later substituted by Shri
A.K. Nandwana, Superintending Mining Engineer, Bhilwara. The
C Committee submitted its report on 10.1.2021, reporting that the dilapidated
structure existing at Khasra No.6731 is neither a mosque nor any structure
with archaeological or historical relevance. Shri A.K. Nandwana, one
of the members had partially dissented with the report by a handwritten
note stating that steps should be taken to stop the illegal mining.
D 10. Learned counsel for the appellant argued that such Expert
Committee constituted had no representative of the appellant and the
appellant was not associated with the report so submitted, therefore, the
report cannot be made basis of rejecting the structure on the Hill as not
a religious structure. It was contended that whether the structure is a
E waqf or not has to be decided by the Waqf Tribunal in terms of Section
83 of the Act and not in a writ petition under Article 226 of the Constitution
of India.
11. Dr. Manish Singhvi, learned senior advocate for the State
supplemented the arguments raised to contend that in terms of the lease
F dated 8.12.2010, the decision as to whether the place is a public ground
over which the mining activity can be carried out has to be determined
by the State Government. The State Government has determined that
mining lease is not permissible over Survey No. 6731.The relevant
conditions read as under:

G “No building etc. upon certain places:-
1. No building or thing shall be erected, set up or placed and no
surface operations shall be carried on in or upon any public pleasure
ground, burning or burial ground or place held sacred by any class
of persons or any house or villages site, public road or other place
which the State Government may determine as public ground nor
H
WAQF BOARD, RAJASTHAN v. JINDAL SAW LIMITED & ORS. 809
[HEMANT GUPTA, J.]

in such a manner as to injure or prejudicially effect any buildings A
works property or rights of other persons and no land will be used
for surface operations which is already occupied by persons other
than the State Government for works or purposes not included in
this lease. The lessee/lessees shall not also interfere with any
right of way well or talk.”
B
12. On the other hand, Mr. Ranjit Kumar and Mr. C.S.
Vaidyanathan, learned senior counsels appearing for the writ petitioner
contended that as per the detailed report submitted by the Tehsildar, on
the basis of which permission to lease was granted, Survey No. 931
over which the said structure is found in the survey report was not part
of the lease. Survey No. 6731 measuring 158 Bigha 12 Biswa was the C
one over which the writ petitioner was granted permission to do the
mining work but there is no document or report to show that any part of
Survey No. 6731 was ever declared to be a religious structure within the
meaning of waqf as defined under the Act. The learned counsel for the
parties furnished the photocopies of the original documents on the basis D
of which reliance was placed by the appellant that the Tiranga Qalandari
Masjid in Village Pur is a mosque and, therefore, no mining activity can
be undertaken.
13. The first document so produced is undated but the subject
shows that it is in respect of Auqaf to be registered in Ajmer and Sunel E
Regions of the State till 5.1.1959 and in the rest of Rajasthan by 1.4.1955.
A reading of the said report shows that it does not have any survey
number, though the value of waqf was assessed at Rs.900/- and the
purpose of use was for Namaaz. Thereafter, a notification was published
on 23.9.1965 declaring Qalandari Masjid of Tiranga as the waqf property
as the nature and object are pious, religious and for offering prayers. F
The appellant has produced an extract from its register pointing out that
12x 9measuring 108 is Tiranga Ki Qalandari Masjid. Another document
produced by the appellant is the survey report dated 15.1.2002 to the
effect that the Qalandari Masjid on Tiranga Hill is situated in Survey No.
931. G
14. With this factual background, Mr. Ranjit Kumar and Mr. C.S.
Vaidyanathan have argued that the claim of the appellant is wholly
untenable as at no point of time, any revenue record shows any religious
structure on the land comprising in Survey No. 6731. In fact, the religious
structure is said to be in existence over Survey No. 931. Still further, the H
810 SUPREME COURT REPORTS [2022] 5 S.C.R.

A record of the appellant shows that the area of the religious structure is
108 feet whereas in the second survey report, the area is shown to be
525 feet. Hence, there is a discrepancy about the area over which the
religious structure is in existence.
15. It has also been contended that a perusal of the photographs
B shows that the structure is totally dilapidated without any roof and in
fact a wall and some broken derelict platform exist at the spot. The area
is surrounded by vegetation and there is also nothing to suggest that the
structure was ever used for offering prayers (Namaaz) as neither the
area is accessible, nor there is any facility of Wazoo3, which is stated to
C be an essential step before offering prayer. The experts from the
Archaeological Department have reported that the structure has no
historical or archaeological importance. It is further contended that the
Tehsildar, before the possession was delivered, had given an extensive
report of each of the structure existing on the land proposed to be given.
The lands for graveyard and other religious structures have been excluded
D from the lease. Therefore, the act of identification carried out years
before raising of the dispute done by the revenue officials in the course
of their official duties carry presumption of correctness. It shows that
the structure had no religious value.
16. We have heard learned counsel for the parties at length and
E find no merit in the appeals. The Qalandari Masjid on Tiranga Hill as per
the document produced by the appellant is located on Survey No. 931.
There is no assertion that the Survey No. 931 is changed as Survey No.
6731. In fact, the old number of Survey No. 6731 is 9646 or may be
some other number but positively not the survey number 931. Therefore,
F the claim of the appellant is on a different portion of land and not the
land leased to the writ petitioner. There is discrepancy in the total area
of the Masjid in the two documents, i.e., the extract produced by the
appellant from the register and the second survey report. The letter
dated 17.4.2012 by the Anjuman Committee is based upon hearsay and
is not of any binding value.
G
17. Still further, there is no evidence at any given point of time
that the structure was being used as a mosque. There is no allegation
or proof of either of dedication or user or grant which can be termed
3
The practice of ritual purification i.e., to wash face, hands, arms and feet before daily
H prayer.
WAQF BOARD, RAJASTHAN v. JINDAL SAW LIMITED & ORS. 811
[HEMANT GUPTA, J.]

as a waqf within the meaning of the Act. Section 3 (r) of the Act reads A
thus:-
“[(r) “waqf” means the permanent dedication by any person, of
any movable or immovable property for any purpose recognised
by the Muslim law as pious, religious or charitable and includes—
(i) a waqf by user but such waqf shall not cease to be a waqf by B
reason only of the user having ceased irrespective of the period
of such cesser;
(ii) a Shamlat Patti, Shamlat Deh, Jumla Malkkan or by any other
name entered in a revenue record;
C
(iii) xxx xxx”
18. The report of the experts is relevant only to the extent that the
structure has no archaeological or historical importance. In the absence
of any proof of dedication or user, a dilapidated wall or a platform cannot
be conferred a status of a religious place for the purpose of offering D
prayers/Namaaz.
19. The stand of the State Government that they have identified it
to be a religious structure comprising in Khasra No. 6731 has not been
produced on record. There is nothing on record that such decision if any,
was arrived at after associating the writ petitioner. It is always open to
E
the State as lessor to exercise the powers conferred in it by the lease
deed after complying the principles of natural justice and on good and
sufficient grounds.
20. In view of the above, we do not find any merit in the present
appeals. Consequently, the appeals are dismissed.
F

Devika Gujral Appeals dismissed.
(Assisted by : Shevali Monga, LCRA)

G

H